What happens if I lose mental capacity and have no valid power of attorney in place?

What happens if I lose mental capacity and have no valid power of attorney in place?

A Lasting Power of Attorney (LPA) is a legal document that allows you to choose the people you want to make decisions on your behalf either immediately, once registered, or when you lack the mental capacity to make those decisions yourself. There are two types of Lasting Power of Attorney, one to cover property and financial affairs and one for health and welfare.

If you lose mental capacity and have no attorney to manage your affairs under a valid Power of Attorney, a Deputy, appointed by the Court of Protection, to act on your behalf, must be found. This can be anyone who applies to the Court to act on your behalf and does not require your consent. It involves a lengthy application process, requiring approval by the Court which can take a considerable amount of time, be very costly and effectively means your assets are frozen, potentially causing hardship for close family members.

I already have a Power of Attorney.

Many people will have made an Enduring Power of Attorney (EPA) when they made their Wills before 1 October 2007, at which point they were replaced with the Lasting Powers of Attorney. The next question is whether this is still a valid document and the simple answer is ‘yes’. However, we would always advise that you have this document checked for validity by a solicitor, as when you lose mental capacity and the power is required, it first needs to be registered with the Office of the Public Guardian in order for it to be used by your attorneys, and it will be too late to rectify any mistakes.

Can Wellers Hedleys help you?

If you are reading this and think it may apply to you, we can offer a consultation, at no cost to you, to review any Powers of Attorney you may have and to ensure they still fulfil your intentions. We can also provide initial advice on whether you should now consider making a Lasting Power of Attorney.