What happens if i do not prepare a Lasting Power of Attorney?

Whilst there is an increase in the awareness of Lasting Power of Attorney and a greater understanding of the importance of these documents, few still do not understand the consequences of not preparing them.

A Lasting Power of Attorney is a legal document which allows you to choose trusted family or friends to manage your financial and/or health matters, in case you suffer with mental health issues and lose mental capacity to manage your own affairs in the future.

Sheila, a donor, discusses who she chose to act as her attorneys and how she went about applying.

The most important thing to remember about Lasting Power of Attorney is that you can only have these prepared whilst you have the mental capacity to do so. There are two types of Lasting Power of Attorney, for more information on both types, visit our FAQ page.

But what would happen if i have not prepared Lasting Power of Attorney and have lost my mental capacity?

Unfortunately, if you do not have a Lasting Power of Attorney or an Enduring Power of Attorney in place and have become unable to manage your affairs, a Deputyship Order will be required, made to the Court of Protection – this can cost far more than setting up Lasting Power of Attorney!

The Court of Protection can:

• decide whether you have the mental capacity to make a decision

• make an order relating to the health and care decisions or property and financial decisions of someone who lacks mental capacity

• appoint a deputy to make decisions on behalf of someone who lacks mental capacity.

What does a Deputy do?

A Deputy is a similar role as an Attorney. They must follow the same rules as an Attorney and ensure that all decisions are made in your best interests.

Property & Financial and Health & Welfare Deputies. These are the two types. Usually, Health & Welfare Deputies are only appointed in rare circumstances, for example, where care is provided, and the individuals disagree on what to do in the person’s best interests.

The court order will set out the extent of the Deputy’s authority to act, so they must always make sure they are not exceeding their powers. A Deputy also has a duty to act in good faith and not to take advantage of their position for their own benefit.

You can’t choose your own Deputy, and the process of appointing one can be very time consuming and costly. It’s better to arrange a Lasting Power of Attorney while you have the mental capacity to do so.

To arrange Lasting Power of Attorney, complete our Online Application, or, Call us to discuss your requirements on 0800 012 2074