What happens if you don’t have a Power of Attorney?

Sometimes, for a variety of reasons, a family will find themselves asking, “What happens if you don’t have a power of attorney?” An elderly person sometimes loses mental capacity without having made powers of attorney in advance, which can be a very awkward situation.

If possible, it is far preferable to make powers of attorney whilst one has capacity to do so. This is much quicker and cheaper than the alternative, and crucially, it allows the person to choose who will act as their attorneys. If somebody loses capacity without appointing attorneys to act for them then they are no longer able to make that appointment themselves.

Instead, a doctor, social worker or similar professional will need to assess the person’s mental capacity, and if they determine that they lack capacity to make a power of attorney then the backup plan is to apply to the Court of Protection for what is known as a “Deputyship Order“. The great majority of deputyship applications made to the Court of Protection relate to the person’s ‘property and financial affairs’. It is also possible to apply to appoint a deputy to oversee the person’s ‘health and welfare’, but this type of application is much less common.

Part of the process of making a deputyship application involves notifying at least three relatives or close friends of the person in question. If there are family members who are likely to object for any reason then they should be served with the court application, in order to allow them the opportunity to put forward their objections formally for the court to consider.

A benefit of appointing a deputy as opposed to an attorney is that deputies are supervised much more closely than attorneys in carrying out their duties. They may be asked to attend meetings to discuss how they have been using their powers, and/or to complete training on how to perform the role. They will also be required to submit annual accounts to the court showing how they have used the person’s money during the year. These safeguards are designed to protect against the possibility of unscrupulous attorneys misusing their powers.

Realistically, a deputyship application takes around 9-10 months to complete, because of the court’s turnaround times and the various stages in the process. The end result should be that a deputy is appointed to run the person’s affairs on their behalf, much in the same way that they could formerly have done themselves.

Make a Free Enquiry

If you have a relative who has lost mental capacity without making power of attorney, we would be glad to help with applying to court for a deputyship order on their behalf. Call us on 01494 708688 or email info@chilternwills.com to discuss making a deputyship application.

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