• 12 Mar 2024
• •
• 2 min read

Losing Capacity without LPAs in place

On a recent episode of ITV’s ‘The Martin Lewis Money Show Live’, Martin Lewis spoke about Lasting Power of Attorneys (LPAs) and why these are such important documents to have in place. Here, I explore the reality of what would happen if an individual were to lose capacity, without making LPAs whilst they are able to.

What if someone loses capacity without LPAs in place?

In the event that a person loses their capacity without LPAs in place which appoint people they trust to act on their behalf, their family or those around them would have to make an application to the Court of Protection to be appointed as a deputy.

In these circumstances, the individual has lost the power to appoint who they want to support them and make decisions on their behalf as their attorneys. LPA applications do not require detailed financial information or a detailed assessment of an Attorney’s suitability. However, with a deputyship application, the Court of Protection will decide whether the person making the application is ‘suitable’ to act as a deputy, and there is a risk that the court may appoint someone the individual would not have chosen themselves. For example, in cases where no close family is able or willing to act, local authorities may take on the role of deputy, or on occasion, solicitors or other professionals may be selected to act.

The process of applying to the Court if Protection is renowned for being incredibly long-winded, and slower and more costly then making LPAs, meaning the individual who is at the heart of the application is left without someone who can step into their shoes immediately and provide support with their finances or personal welfare. If the individual who has lost capacity needs urgent medical treatment or needs to move into a care home as they are unable to cope at home, there is a risk that there will be confusion about who can make decisions on their behalf and without a deputyship order in place, these decisions may be delayed or be made by people the individual would not have chosen.

What are the implications of applying to the Court of Protection?

The deputyship application fee to the Court of Protection is £371, compared to £82 per LPA registration fee. The required forms are lengthy and require detailed information about the individual’s (who has lost capacity) circumstances and finances, as well as those applying to be their deputy. Once the forms are completed and sent, it can take a minimum of nine months to receive an order, but it has been known to take a year.

The Office of the Public Guardian is also responsible for checking that a deputy is carrying out their role properly, and all new deputies are placed under supervision in their first year and continue under general supervision while deputy. If the assets of the person concerned are below a set amount and there are no concerns about the deputy, they will be placed under minimal supervision after the first year.

It is very important that if an individual is able to, they put LPAs in place when they can, so they have control about who is to be appointed their attorney(s) if ever needed, and to ensure that their loved ones do not have to undergo a lengthy and expensive court process.

If you would like to talk to our dedicated Private Client team, please call us on 0800 2800 421 or contact us above.