Deputyship: What to Do When There Is No Power of Attorney

If someone loses the mental capacity to make their own decisions, perhaps because of dementia, a stroke, a brain injury or a learning disability, somebody needs the legal authority to help. The best way to provide that is a lasting power of attorney (LPA), made while the person still has capacity.

When there is no LPA, and no older enduring power of attorney, the usual answer is deputyship. A deputy is a person appointed by the Court of Protection to make decisions on behalf of someone who cannot make them for themselves. The court’s order sets out exactly what the deputy can and cannot do, and the deputy is supervised by the Office of the Public Guardian (OPG).

Applying can feel daunting at an already worrying time, but it is a well trodden path, and with the right support most families find it far more manageable than they expected.

Many families first discover the need for deputyship when something practical stops working. For example:

• a bank will not let you deal with a parent’s account, even to pay their bills;
• a parent needs to move into a care home and their house may need to be sold to pay for it;
• investments, pensions or savings need managing and nobody has authority;
• an LPA was made but cannot be used, perhaps because an attorney has died or it was never valid.

Contrary to what many people assume, a husband, wife or adult child has no automatic right to manage a loved one’s money or property. Unless there is an LPA or a registered enduring power of attorney, deputyship is usually needed.

If you are not sure whether a relative ever made an LPA, the OPG can search its registers. It is worth checking before starting an application.

Deputyship often goes hand in hand with planning for care. If a loved one is moving into residential care, our article on care home fees explains some of the questions families commonly face, and we can help with both at the same time.

There are two types of deputyship, which mirror the two types of LPA:

• Property and financial affairs deputy. By far the most common. This deputy can deal with things like bank accounts, bills, pensions and benefits, investments and, if the order allows, selling property.
• Personal welfare deputy. This deputy makes decisions about matters such as care and where the person lives. The court appoints personal welfare deputies much less often, because many welfare decisions can be made in the person’s best interests without one, with the court available to decide specific disputes.

In most families, a property and financial affairs deputyship is what is needed. The court can tailor the order to the person’s circumstances, and the deputy only has the powers the order gives. A deputy can never override a decision the person is still able to make for themselves, and they must always consider the person’s own wishes and feelings.

A deputy must be aged 18 or over. It is often a close relative or friend, known as a lay deputy, and you can apply jointly with someone else. The court will want to be satisfied that the proposed deputy is suitable, will act in the person’s best interests and can manage the responsibility, including the paperwork.

Sometimes a professional deputy, such as a solicitor, is more appropriate, for example where the person’s finances are complicated, there is a family disagreement, or nobody suitable is willing to take it on. We can talk you through which option fits your situation.

The application is made to the Court of Protection. In outline:

1. Capacity assessment. A doctor or other suitably qualified professional completes an assessment confirming that the person lacks capacity to make the relevant decisions.
2. The application forms. These set out the person’s circumstances, their assets and income, the proposed deputy and what powers are being asked for. The proposed deputy also signs a declaration about their own circumstances and their understanding of the role.
3. Notifying people. The person concerned must be told about the application, and certain other people, usually close family, must be notified so they can raise any concerns.
4. The court’s decision. Most straightforward applications are decided on the papers, without a hearing.
5. The security bond. For a property and financial affairs deputyship, the court normally requires the deputy to take out a security bond, a type of insurance that protects the person’s money.
6. Supervision. Once appointed, the deputy is supervised by the OPG.

There is a court fee, and ongoing costs such as the security bond premium and the OPG supervision fee. Help with court fees may be available in some cases. We will explain the costs that apply to you before we start.

Once the order is made, banks and other organisations will want to see it before they deal with the deputy, so it is worth asking for several sealed copies. From then on, the deputy can manage the person’s affairs with confidence, knowing exactly what the court has authorised.

Being a deputy is a position of trust, and the law sets clear standards. A deputy must:

• always act in the person’s best interests, following the principles of the Mental Capacity Act 2005, and involve the person in decisions as far as they can;
• only act within the powers given in the court order;
• keep the person’s money separate from their own;
• keep careful records of decisions, income and spending;
• send the OPG a report, usually each year, explaining the decisions made and the money managed.

Some steps need the court’s specific permission, such as making larger gifts or arranging a will for the person. If you are unsure whether something is allowed, it is always better to ask first. We support deputies with their reports and questions, so you are never left on your own.

It varies. Gathering the capacity assessment and completing the forms can take a few weeks, and the Court of Protection then needs time to process the application. Overall, it commonly takes several months from start to finish, and sometimes longer, depending on the court’s workload and whether anyone objects.

Careful preparation helps, because forms that are incomplete or unclear can be sent back. In a genuine emergency, for example where urgent action is needed to protect the person’s money, the court can be asked to deal with matters more quickly.

Sometimes. If the person still has capacity to make an LPA, that is almost always quicker, cheaper and better, because they choose their own attorneys. Capacity can fluctuate, and a person may have capacity to make an LPA even if they struggle with complex financial decisions, so it is worth asking.

If an enduring power of attorney was signed before October 2007, it can be registered and used instead. And where the only income is state benefits, the Department for Work and Pensions can appoint someone, known as an appointee, to manage those benefits, although that does not cover savings or property.

Our Wills & Probate team, including Partner Andrew Horwich and Associate Solicitor Thomas Jordan, helps families in Scunthorpe, Goole and across North Lincolnshire and the East Riding when a loved one can no longer manage their own affairs. We can check whether there is an existing power of attorney, explain whether deputyship is needed, prepare the application and support you as a deputy afterwards.

If you would like to spare your own family the same process in future, our power of attorney team can help you put LPAs in place, and our article on power of attorney and dementia explains why it matters. Speak to us at our Scunthorpe or Goole office, by phone or by video.