WHAT IF YOU DON'T MAKE AN LPA?

Well, hopefully… nothing. Hopefully, you will have a long and healthy life where you can always continue to manage your own affairs, your own property, finances and health care. Hopefully, you’ll always have the physical and mental capacity to do this as we all would.

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Unfortunately, life isn’t always so accommodating. If you’re hurt in an accident or have an illness or disease that means that you temporarily or, if the worst happens, permanently lose mental capacity to manage your own affairs then this could well be difficult.

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Without a Lasting Power of Attorney someone will need to apply to court to be appointed your Deputy to look after your affairs or the court can appoint a Deputy if no one steps forward. 

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It’s a longer and more costly process to apply for Deputyship rather than a Lasting Power of Attorney. If a professional Deputy is appointed, typically solicitors, they will obviously need to be paid their professional fees. These on-going costs and annual court supervision fees in addition to   the application costs must be met from your own financial resources.

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A deputy is appointed by the Court of Protection once an individual lacks capacity.

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Other factors to be aware of:

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• An application to appoint a deputy has to be considered by a judge in the Court of Protection.

• Close family members need to be notified of the application and given the opportunity to object. This means that the application process takes much longer and is generally more expensive.

• A Deputy has an obligation to report to the Office of the Public Guardian (a body that oversees deputies) on an annual basis to show what has been spent during the year.

• A Deputy is required to take out a ‘security bond’ each year of their appointment. This is an insurance policy which protects the incapacitated person’s funds should the Deputy mismanage these. There is no equivalent for attorneys.

• Lasting Powers of Attorney can be set up for property and financial affairs and health and welfare. The Court of Protection only appoints deputies for health and welfare in very limited circumstances and so normally an individual can only be appointed as property and financial affairs deputy.

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Deputyships do have important safeguards to help protect an incapacitated person from financial abuse. This is very important but does mean that the application process takes much longer and is more expensive. There are also compulsory annual costs which need to be paid to provide these safeguards. The fact that Lasting Powers of Attorney do not offer the incapacitated person as much protection from financial abuse is a concern. But the benefit is that you have the choice of who to appoint in the first place and what powers they should have. It is also possible to appoint an independent professional attorney as your attorney should you have any concerns which would provide an additional layer of protection.

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Whilst the Lasting Power of Attorney system is not without flaws, for most people the certainty of having one in place outweighs the uncertainty of losing capacity without one.

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The real disadvantage is that you will not make or influence any of the decisions. You don’t get to choose who your Deputy will be. You don’t have the ability to set out legally binding restrictions on what your attorneys can or can’t do. You don’t have the ability to set out your preferences about how you’d like your finances managed or your health and well-being taken care of.

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Without a Lasting Power of Attorney, it’s out of your hands at the very time when you’d want the reassurance that there was someone acting on your behalf who you knew and trusted and who knew your wishes and preferences. Hopefully, you'll never actually need assistance and your Lasting Power of Attorney just gathers dust, but it can be seen as money very well spent to have an important safety net in place.