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What happens if I don't have a power of attorney?

If there comes a time when you can't make or communicate a certain decision at the time the decision needs to be made, and you haven’t set up a valid lasting or enduring power of attorney, the Court of Protection may need to become involved.

What happens if I lose mental capacity and I haven't set up a power of attorney?

A power of attorney gives someone you trust the authority to make decisions on your behalf.

If you lose mental capacity and you don’t have a valid lasting power of attorney (LPA) or enduring power of attorney (EPA), someone wishing to act on your behalf may need to apply to the Court of Protection to be appointed as your 'deputy'. This can be a lengthy and costly process, and you can't choose who your deputy is, because in this situation you'd have lost mental capacity to choose who acts for you. 

The Court of Protection will consider whether the person applying to be appointed as deputy is suitable for the role. 

For an explanation of 'deputies', see the next section.

What if I lose mental capacity and I receive benefits?

If someone receives benefits, they lose mental capacity and they don't have an attorney, someone can apply to the Department for Work and Pensions (DWP) to become their 'appointee'. An appointee has authority to manage and spend that person's benefits, including their State Pension. This means that, if the person only has income from benefits and no other income or capital, then a deputy application may not be needed. Otherwise, a deputyship may be needed.

Find out more about becoming an appointee on GOV.UK

What is a deputy and what do they do?

A deputy has similar responsibilities to an attorney. They can only act within the authority set out by the Court, and they have a duty to act in good faith. They must also follow the same principles as attorneys to make sure that any decisions they make on your behalf are made in your best interests.

Like lasting powers of attorney, there are 2 types of deputy: the property and financial affairs deputy and the personal welfare deputy. Personal welfare deputies are usually only appointed in rare circumstances, though – for example, when there's doubt about whether decisions will be made in someone's best interests because their family disagree about their care.

Being a deputy involves a lot of responsibility, so anyone asked to take on the role should consider carefully whether it’s something they’re comfortable doing. 

If you're concerned that your deputy isn't acting in your best interests – or that someone else's deputy isn't acting in their best interests – contact the Office of the Public Guardian by calling them on 0300 456 0300

What happens when you apply to be someone's deputy?

When you apply to the Court of Protection to be appointed as someone's deputy, the Court will consider whether it's necessary for ongoing decisions to be made on their behalf, and whether the person applying is suitable for the role. The Court usually does everything by post, rather than holding a hearing.

Find out more about applying to be a personal welfare deputy on GOV.UK

Find out more about applying to be a property and financial affairs deputy on GOV.UK

What is an independent mental capacity advocate (IMCA)?

If you’re ever unable to make certain important decisions and there’s no one able to speak on your behalf beyond health and care staff, such as a family member or friend, an independent mental capacity advocate (IMCA) must be appointed to support and represent you.

The decisions your IMCA might be involved in could relate to things such as serious medical treatment, a long-term hospital or care home stay, or a care review. The NHS organisation or local council providing your care are responsible for appointing an IMCA. 

You'd only be appointed an IMCA for specific decisions and when there is no one able to speak on your behalf.  

Find out more about IMCAs on GOV.UK

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Last updated: Apr 08 2024

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