When a loved one loses the ability to make decisions for themselves, whether due to illness, injury, or age it can be a distressing and overwhelming time. Matters become even more complicated if they have not set up a Lasting Power of Attorney (LPA) to allow someone they trust to manage their affairs. In this guide, we explain the steps you can take to ensure their health, welfare, and finances are protected, in line with UK law.
Understanding Mental Capacity
Mental capacity refers to a person’s ability to make and communicate their own decisions. If your loved one can no longer do this, they may be considered to have “lost capacity”.
According to the Mental Capacity Act 2005, capacity is both decision specific and time specific. For example, someone may lack capacity to make financial decisions but still understand and decide on simpler matters. Without an LPA, no one not even a spouse or adult child has the automatic authority to act on their behalf.
Step 1: Confirm the Loss of Capacity
First, you must establish that your loved one lacks mental capacity in relation to specific decisions. Qualified professionals typically carry out this assessment. These include:
- GPs or specialist doctors
- Mental health professionals
- Social workers or nurses trained in capacity assessments
These professionals follow the Mental Capacity Act 2005 guidelines, which require any decisions made on the person’s behalf to be in their best interests.
Step 2: Apply for a Deputyship
If your loved one did not make an LPA, you’ll need to apply to the Court of Protection for a Deputyship. This legal process appoints someone, usually a family member as a Deputy to manage the person’s affairs.
Types of Deputyship
- Property and Financial Affairs Deputyship – Covers bank accounts, bill payments, pensions, and property.
- Health and Welfare Deputyship – Covers medical decisions and care arrangements. This type is less common and typically used only in complex or disputed cases.
What the Application Involves
To apply, you must:
- Complete Court of Protection forms, including COP1 and COP3 (medical assessment)
- Submit detailed financial information
- Notify close relatives and other interested parties
- Pay the application and assessment fees (fee remissions may apply)
- Wait for court approval, this process can take up to six months
During this period, you may not be able to access the individual’s funds, which can cause delays in providing necessary care or support.
Step 3: Understand the Deputy’s Responsibilities
Once appointed, you must fulfil several legal duties, including:
- Acting in the person’s best interests at all times
- Keeping accurate financial records
- Submitting yearly reports to the Office of the Public Guardian
- Adhering to court imposed restrictions such as needing permission to sell property or make gifts
These responsibilities are legally binding under the Mental Capacity Act 2005 and monitored by the Office of the Public Guardian (OPG).
Step 4: Seek Legal Advice
Navigating the Court of Protection process can be complex and emotionally taxing. Therefore, seeking legal advice early in the process is crucial. A solicitor can:
- Ensure your application is correctly completed
- Explain your legal responsibilities as a Deputy
- Represent you if the application is disputed
- Help prevent costly errors or delays
By involving a legal professional, you safeguard your loved one’s interests while reducing stress and uncertainty.
Can Anything Be Done in the Meantime?
While waiting for the Deputyship Order, you may feel powerless. However, some interim solutions may be available:
- Banks or care homes might offer temporary arrangements on a case by case basis
- Local authorities could provide emergency care under adult safeguarding duties
- In urgent situations, solicitors can apply for an interim Court of Protection order, typically granted only for serious medical or financial risks
Future Planning: Why Setting Up an LPA Matters
Although Deputyship is a helpful option, it is more time consuming, costly, and restrictive than an LPA. Encouraging early planning ensures that:
- Individuals choose trusted representatives for their affairs
- Families avoid court delays and legal fees
- Everyone involved gains peace of mind
By creating an LPA while a person still has capacity, you take a proactive and protective step for the future.
Final Thoughts
Discovering that a loved one has lost mental capacity without an LPA can feel overwhelming. While Deputyship provides a structured legal route, it comes with delays and formalities that can add stress during an already difficult time. Seeking early legal support helps streamline the process and ensures that all actions comply with the Mental Capacity Act 2005. Ultimately, this situation highlights the importance of advance planning through an LPA.
How 360 Law Services Can Help
At 360 Law Services, we believe in the power of planning ahead. Our experienced solicitors can help you create a Lasting Power of Attorney, ensuring your wishes are respected and your affairs are managed by someone you trust. We provide clear, expert guidance throughout the LPA process, removing confusion, avoiding delays, and giving you peace of mind. If required, we can also assist with Deputyship Order applications. Let us help you take control today and secure the right support for tomorrow.
