What Happens When There is No Lasting Power of Attorney?
A power of attorney (POA) is crucial in the protection of your best interests and your assets — but what happens when there is no lasting power of attorney in place?
This blog will discuss the role of a lasting power of attorney (LPA) and what will happen if you do not have one in place. We’ll also review what a deputy is, what they can do for you, who can be a deputy in the first place, and more.
What Does a Lasting Power of Attorney Do ?
The role of an LPA is to make important decisions on your behalf should you lose the mental capacity to do so yourself, if you no longer wish to or if you cannot make these vital decisions for another reason (for example, when you are out of the country).
A lasting power of attorney is most commonly needed when the individual who made it — known as the donor — has an accident, is suffering from a serious illness that inhibits their ability to make decisions of their own, lacks mental capacity, or is not currently available.
Before the year 2007, when the Mental Capacity Act was passed, the role of a lasting power of attorney did not exist. A person would instead apply for an Enduring Power of Attorney (EPA). The two roles do have similarities — however an LPA is a much more comprehensive document. If a person’s power of attorney predates October 2007, they may still have an EPA in place.
What Happens if There is no Lasting Power of Attorney?
If there is no lasting power of attorney in place to manage your personal affairs, and it is deemed that you have lost the ability to make key decisions, the Court of Protection will appoint someone to a similar role for you. This person is known as a Deputy.
In this situation it is possible that you may be asking, “Do I even need an LPA?” Well, it is strongly advised that you do, as if there is no lasting power of attorney:
- You will have no input into who the courts appoint as your deputy
- You will have no say in what power is granted to your deputy
- Your family will likely have to pay to apply for and maintain a deputyship on your behalf
- Jointly held assets may be held in limbo until a deputy is appointed
What is Deputyship?
Deputyship is legal documentation that allows a person to make certain key decisions on behalf of another party. It is only necessary if the party can no longer make these decisions for themselves AND the person in has not made a valid LPA/EPA by the time they need the decisions made.
There are two types of deputy; property & financial affairs and personal welfare deputies. The former will be responsible for the finances of the person in need: to pay bills, organise pension, ensure that their assets are protected, etc. The latter will be responsible for medical treatments and ensure that they are properly cared for.
It is important to note that deputyship is only in use in England and Wales.
Much like a lasting power of attorney, deputies are seen as responsible for helping somebody in need make important decisions or to make decisions on their behalf should they be unable.
As set out in the Mental Capacity Act 2005, there is some guidance for any deputies. This includes:
- Deputies must make sure that everything they do is in the other person’s best interests.
- They must apply as high a level of care as possible.
- Do everything in their power to help the person they are responsible for in understanding the situation and the decisions being made.
- Try to take into account what the person has done in the past
- Never take advantage of the person’s situation for any reason
- Do not make a will for the person
- They cannot make gifts on behalf of the person unless specifically ordered by the court
- Hold property on the person’s behalf in their own name
As mentioned above, deputies are appointed by the Court of Protection, meaning that anybody seeking to be appointed to the position of deputy they must apply directly to the court. The court will then make a decision to decide if they feel that the applicant is suitable for the role based on the information included in your application.
Who Can Apply to be a Deputy?
Anybody over the age of 18 can apply to be a deputy. Traditionally, the person selected to be a deputy is either a close relative or friend. However, to be named a property and financial affairs deputy it is required that you possess the necessary skills to make informed decisions.
You cannot be appointed as somebody’s deputy if the person in question is 16 years of age or under.
Before applying to be a deputy, you must first consider not only if you are the best candidate, as well as if your deputyship would truly be in the best interests of the person in need. It is possible that if you wish to make a single decision on the behalf of somebody, you may be able to apply to the Court of Protection for a one-off order.
It may be possible to share the responsibilities of deputyship with another person. If you would like to have more than one deputy you must both apply at the same time and state your intentions.
How Just Wills and Legal Service can Help
Creating and applying to the courts for a lasting power of attorney should be seen as a vital step in ensuring that your best interests and wishes are considered no matter what may or may not happen to you in the future.
A power of attorney guarantees long-term security for your health, finances, and more. If there is no lasting power of attorney and you are ever in need, important decisions will likely be made by somebody you have not chosen.
If you still have the mental capacity to do so, appointing an LPA can be a fairly simple way to ensure guaranteed peace of mind. At Just Wills and Legal Services, we understand that thinking about the worst case scenario is never fun — but it is vital that you prepare for it as much as possible, for your benefit and that of your nearest and dearest.
Our specialist team has been operating for decades in the legal field, assisting people with the appointment of power of attorneys, the creation of wills, and more.
Contact a member of our team today and find out more about what we can do for you and to discuss your best options going forwards.
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