What Happens If You Lose Capacity Without an LPA? Understanding Deputyship

The Problem

If you lose mental capacity (through dementia, a stroke, a serious accident or any other cause) and you have not made a lasting power of attorney, your family faces a difficult situation. No one, not even your spouse, has automatic legal authority to run your bank accounts, pay your bills, deal with your property or make decisions about your care.

To get that authority, a family member or another interested person must apply to the Court of Protection to be appointed your "deputy".

What Is a Deputyship?

A deputyship order is a court order appointing someone to make decisions for a person who lacks mental capacity. As with LPAs, there are two types: one for property and financial affairs, and one for personal welfare. Personal welfare deputyships are uncommon and only granted when the court considers them necessary.

How Deputyship Differs from an LPA

There are several important differences between an LPA and a deputyship:

You do not choose your deputy. Under an LPA you choose your own attorneys. In a deputyship application the court decides whom to appoint. It will usually appoint the person who applies, typically a close family member. If there is a dispute about who should be deputy, the court decides, and the outcome may not be what you would have wished.

The process is slower and dearer. The Court of Protection application fee is £432, against £92 to register an LPA. A new deputy may also have to pay a £100 assessment fee, and there is a £266 fee if the court decides a hearing is needed. Most people also pay a solicitor to prepare the application. The process takes months, not weeks.

Ongoing supervision. Unlike attorneys under an LPA, deputies are supervised by the Office of the Public Guardian (OPG). They must submit annual reports and pay an annual supervision fee (£320 for general supervision, or £35 where the deputy manages less than £21,000). This is an ongoing cost and burden.

A deputy may have narrower powers. The court may limit a deputy's powers more than you would limit your own attorneys. For example, a deputy may need specific court approval for some transactions, such as selling property.

The Emotional Cost

Beyond the money and the practicalities, the deputyship process is stressful. Applying to the Court of Protection in the middle of a medical crisis, when someone has just had a stroke or been diagnosed with dementia, adds legal complexity and delay to an already hard situation.

Family disputes about who should be deputy can do lasting damage. And while the order is awaited, bills can go unpaid, care arrangements can stall, and families cannot reach the money they need.

The Simple Solution

An LPA made while you still have capacity avoids all of these problems. It is cheaper, faster and more flexible, and it puts you, not a court, in control of who will manage your affairs.

The registration fee of £92 per LPA is a fraction of the cost of a deputyship. Registration takes 8 to 10 weeks rather than months. There are no ongoing supervision fees.

If you have been putting off an LPA, remember: an LPA can only be made while you have mental capacity. Once capacity is lost, the option is gone.

If you would like to discuss setting up an LPA, contact Aaron.

This guide is general information, not legal advice.