Posted 29 Apr, 2025

What Happens When You Lose Mental Capacity Without Lasting Powers of Attorney?

What happens when you lose mental capacity and do not have Lasting Powers of Attorney in place? Our Head of Private Client explores the implications and processes that need to be followed in order to be appointed as a Deputy to deal with someone’s affairs.

Navigating the complexities around this area can be daunting, especially at a time of emotional upheaval. Facing practical challenges at a time when a loved one is experiencing a decline in their mental capacity can be both upsetting and difficult.

Our specialist lawyers can assist you in helping you to understand the legal processes you need to go through, guiding you through the paperwork and helping you to make key decisions.

What Is a Deputy?

Whilst there are similarities between an Attorney and a Deputy, the major difference is that whilst an Attorney is appointed by you, a Deputy is appointed by the Court of Protection to put in place someone to manage your affairs.

There are two ways in which a Deputy can be appointed: one to deal with your property and financial decisions, and one to enable decisions to be made for your personal welfare. Generally, the Court of Protection appoints deputies to make decisions about property and financial affairs, as this is usually where difficulties arise initially. For example, your loved one may be placed in a care home and there is a requirement for payment towards care fees with no access to the bank account.

Types of Deputyship

A Deputy appointed for Property and Financial Affairs can make decisions in respect of:

• Managing bank accounts

• Paying rent or bills

• Handling pensions and benefit claims

• Selling property/land if required

Whilst being appointed as a Health and Welfare Deputy allows decisions to be made in respect of:

• Medical treatment decisions

• Day-to-day care arrangements

• Where the person should reside

• Deciding who the person should have contact with

There are often difficult decisions to be made, and they may not always be decisions that would ordinarily be taken. However, Deputies will be required to make a decision in the best interests of the person who has lost capacity.

Most deputies are family members or close friends. However, where this is not appropriate or possible, a professional such as a solicitor or a local authority officer (e.g. social worker) may be appointed. Professionals are able to take the emotional aspect out of it and make clear and informed decisions, all the while ensuring that the decisions are being made in the best interests of the client.

How Do You Become a Deputy?

In order to become a Deputy, there are a number of key steps that need to be undertaken:

• An application process – completing the detailed application forms

• Arranging for a professional mental capacity assessment of the person to accompany the application

• Notifying family and key people of the application process

• Waiting for the Court to review and make a decision

When making an application to be appointed as a Deputy for Property and Financial Affairs, you will also be required to arrange a security bond. This is likened to an insurance policy that essentially protects the person’s money in case something goes wrong.

Fees to Be Paid

If you use a professional, it is perfectly reasonable for the solicitor to want their legal fees to be paid. When we act for Deputies, we usually ask the Court, as part of the application process, to authorise payment of our legal costs from your loved one’s funds. We will provide a clear estimate of our fees, showing what they cover, such as preparation of the application form and correspondence with the Court, together with advice throughout.

What Happens After the Court Approves the Application?

Once the Court of Protection has approved the appointment, your role as Deputy will commence. You will be expected to:

• Always make decisions in the person’s best interests

• Report annually to the Office of the Public Guardian

• Keep accurate records of financial transactions (if you are appointed to manage money)

Is Becoming a Deputy Right for You?

Becoming a Deputy is not for everyone. It takes dedication, care, and sometimes significant time. It’s about being appointed at a crucial time in someone’s life when they are unable to make a decision for themselves. It’s about making someone feel respected and cared for, and knowing you are helping them at a time when they are unable to do so themselves.

Whether you are looking for someone to assist you with the process or just need initial advice, our specialist lawyers at Endeavour Law are here to help. Contact us today for further information.