What happens if I lose mental capacity and do not have an LPA?

Mental capacity refers to the ability to make your own decisions. This includes understanding information relevant to a decision, retaining that information, using it to make a decision, and communicating your decision.

An LPA, or Lasting Power of Attorney, is a legal document that allows someone to make decisions on your behalf if you lose the mental capacity to do so.

If you lose mental capacity and don't have an LPA, your family or close relations may need to apply to a court, such as the Court of Protection in England and Wales, to be appointed as your deputy to manage your affairs.

Typically, a family member or close friend would apply to the court to become your deputy, but a professional deputy such as a solicitor could also be appointed.

The Court of Protection is a specialist court in England and Wales that makes decisions on financial or welfare matters for people who can't make decisions at the time they need to be made due to lacking mental capacity.

The process of appointing a deputy can take several months, during which time your affairs might be in limbo.

A deputy can make decisions about your property and finances, and in some cases, your personal welfare, but only as specified by the court.

Not everyone is suitable to be a deputy. The court assesses applicants to ensure they can fulfill the duties and responsibilities required.

A deputy may not have as wide-ranging powers as an attorney appointed under an LPA, and they must adhere to court orders.

Yes, applying for a deputyship through the court involves application fees, ongoing supervision fees, and may require legal costs if solicitors are involved.

Without a legal authority such as an LPA or deputyship, your family may struggle to access your finances or manage affairs in your best interest.

A deputy must act in the best interests of the person who lacks capacity, keep records of their decisions, and act in accordance with the court’s instructions.

A deputy appointed for property and financial affairs cannot make healthcare decisions unless this is explicitly stated in their appointment by the court.

Alternatives include the preparation of an Advanced Decision, which outlines your treatment preferences, although this is limited to healthcare decisions only.

The court considers the relationship of the applicant to the person lacking capacity, their ability to act in that person’s best interests, and any objections from other family members.

An LPA is arranged by you while you still have capacity, giving chosen attorneys authority to act for you. Deputyship is court-granted authority given when no LPA is present and you have lost capacity.

The process can be lengthy, potentially contentious, and costly, creating stress and delay in decisions about your care or finances.

If you regain mental capacity, deputyship orders can be reviewed or discharged by the court, and you can resume decision-making for yourself.

Deputies are often supervised by the Office of the Public Guardian to ensure compliance with their responsibilities and the court’s instructions.

Prepare by creating an LPA while you have the capacity to ensure your chosen appointees can manage your affairs as you would prefer if you later become unable to make decisions.