What Happens If You Don’t Have a Power of Attorney?
  • Helen Claydon

What Happens If You Don’t Have a Power of Attorney?





Around 25% of people in the UK will suffer from a mental health problem at some point during their lives. If there comes a time in your life where you don’t have the mental capacity to make your own decisions, then the Court of Protection could become involved to make decisions on your behalf.


If you are married or in a civil partnership then you might believe that your spouse can deal with your affairs automatically but this is not the case.


If you are no longer able to make your own decisions and you don’t have a valid lasting power of attorney or enduring power of attorney, someone will need to make an application to the Court of Protection on your behalf to be able to access your finances and make

decisions for you.


As a result, the Court of Protection can determine whether you are capable of making your own decisions. They can also make an order that relates to a specific question regarding either your health and care or property and finances. The court can also put a deputy in place to make decisions on behalf of someone who cannot manage their finances or make decisions for themselves. 



What is the Role of a Deputy?

A deputy has a similar role to an Attorney. They have to follow the same principles while continuing to make decisions in the best interest of the individual. There are two types of deputy known as property and financial affairs deputy and personal welfare deputy. 

The Court Order will indicate how much authority the deputy has and could limit their powers or request that further authority from the Court be sought in certain circumstances such as deciding to sell a property owned by the incapacitated person.



Is it Possible to Apply to be a Deputy?

If someone wants to make decisions on your behalf then they can make an application to the Court of Protection. The court will consider whether a Deputy is necessary for any further decisions to be made on your behalf and whether the individual is right for the role of deputy. This involves looking into the personal circumstances of the person applying to ensure that they are suitable to manage your finances.


If you have an existing enduring power of attorney this is still a valid document that can be used however there might be circumstances when your chosen Attorney might have to make an application to act as deputy. If you have an EPA you may wish to consider changing this to an LPA to avoid complications for your chosen attorneys in the future.



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