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What happens if I don’t make a power of attorney?

If there comes a time in the future when you don’t have the mental capacity to make a particular decision, and you haven’t created a valid lasting power of attorney (LPA) or enduring power of attorney (EPA), it may be necessary for the Court of Protection to become involved.

The Court of Protection can:

  • decide whether someone has the mental capacity to make a decision
  • make an order relating to the personal welfare or property and financial affairs of someone who lacks mental capacity
  • appoint a deputy to make decisions on behalf of someone who lacks mental capacity.

Someone who wants to make decisions on your behalf can apply to the court to be appointed as deputy.

This is a similar role to that of attorney. The court will consider whether it is necessary for ongoing decisions to be made on your behalf, and whether that person is suitable to be appointed to that role. The court usually does everything by post, rather than holding a hearing.

If you have an existing EPA, the attorney may apply to act as a deputy in certain circumstances. You can’t choose your deputy and the process of appointing one can be lengthy and costly. It’s much better to have an LPA in place

What does a deputy do?

The deputy has similar responsibilities to an attorney. They must always follow certain principles taking all steps possible to allow you to make your own decisions and ensuring any decisions they do make are in your best interests.

The court order will set out the extent of the deputy’s authority to act, so they must always make sure they’re not exceeding their powers. A deputy also has a duty to act in good faith and not to take advantage of their position for their own benefit.

Becoming a deputy involves a lot of responsibility, so the person should think carefully about whether they want to take on the role or whether there may be someone else who would be more appropriate.

Further information

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For more information: Call Age UK Advice: 0800 169 2081