What if there is no Power of Attorney?

If your loved one has lost mental capacity but has not put a Power of Attorney in place, you may be unsure of who is able to make decisions on their behalf.

What is a Power of Attorney?

A Power of Attorney is when somebody assigns a person they trust to make complex decisions on their behalf, should they ever lose the mental capacity to make informed decisions themselves.

A Power of Attorney can only be made while the person has mental capacity. If they lose it before making one, other arrangements must be made.

What is mental capacity?

Mental capacity is the ability to make informed decisions. To have mental capacity, a person must be able to understand information relevant to the decision, remember it and use it to make their choice.

Conditions that cause people to lose or not have mental capacity include dementia, brain injuries, neurological conditions or severe learning disabilities.

Someone must be assumed to have mental capacity unless they are formally assessed as not having so. A diagnosis of one of the abovementioned conditions does not equal a mental capacity assessment.

What if my loved one has no Power of Attorney?

If there is no Power of Attorney, certain people may be appointed as Decision Makers under the Mental Capacity Act.

The Decision Makers are often professionals, or professional bodies, involved in the specific decision, such as a local authority, doctor, social worker or solicitor.

They must make the decision following a strict procedure that ensures that the decision is in the person’s best interest. Part of the decision-making may include asking you for your opinion, if you are involved in the person’s care.

Northern Ireland

In Northern Ireland, the person’s next of kin usually has the right to make decisions about their health and welfare, without needing a Power of Attorney or Deputyship.

Deputyships

If you would prefer to make decisions on the person’s behalf yourself, you can apply for deputyship.

A deputyship order gives you the legal power to make decision on somebody’s behalf. It is used if the person has already lost the mental capacity to appoint an attorney. Instead, you will be their deputy.

Deputyships are more expensive than Powers of Attorney and you have to go through court to get one. They can take a long time to acquire, be complex to acquire and accrue additional costs, whereas Lasting Powers of Attorney are relatively simple to set up with a one-off fee of between £81 and £151, depending on where you live in the UK. For these reasons, if you are still able to set up an LPA it is advisable to do so.

Independent Mental Capacity Advocate

If the person has no attorney, no deputy, no close friends or family who are in a position to advocate for them and no professional who would be able to make an informed decision on their behalf, they may be appointed an Independent Mental Capacity Advocate (IMCA).

This advocate ensures that the person’s views are taken into account about a decision and that the decision is being made in their best interests.

Types of deputyship

As with Power of Attorney, there are two types of deputyships:

• Property and financial affairs deputy – for decisions about the person’s finances and properties, such as selling or letting their home, applying for benefits or paying bills.
• Personal welfare deputy – for decisions about the person’s health and welfare, such as choosing the right care home for them, employing private carers or consenting to medical treatments.

How do I set up a deputyship?

A deputyship order can be granted by The Court of Protection. They decide whether you will be able to make informed decisions that are in the person’s best interests.

To be considered, you must be over the age of 18. To be a property and financial affairs deputy you must have certain skills that enable you to fulfil your responsibilities well.

If you are successful, you will be monitored by the Public Guardian and will need to complete an annual report for them about the decisions you’ve made.

There is full guidance on deputyships and how to set one up here.