What happens if you don't have a power of attorney?

If there comes a time in the future when you don’t have the mental capacity to make or communicate your own decisions, and you haven’t created a valid lasting power of attorney or enduring power of attorney, it may be necessary for the Court of Protection to become involved.

What happens if I lose capacity and don’t have a power of attorney?

If you’re married or in a civil partnership, you may have assumed that your spouse would automatically be able to deal with your bank accounts and pensions, and make decisions about your health and care, if you lose the ability to do so. This is not the case.

If you lose the capacity to make your own decisions and you don’t have a valid lasting power of attorney or enduring power of attorney, you will need to apply to the Court of Protection.

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 to that of attorney. They must follow the same principles as an attorney to make sure decisions are made in your best interests.

There are two types of deputy: property and financial affairs deputy and personal welfare deputy. Personal welfare deputies are usually only appointed in rare circumstances, for example where those providing care or treatment 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 attorney and the process of appointing one can be lengthy and costly. It’s much better to put a lasting power of attorney in place while you still can.

Can someone apply to be a deputy?

Someone who wants to make decisions on your behalf can apply to the Court of Protection to be appointed as deputy. The Court will consider whether it is necessary for ongoing decisions to be made on your behalf, and whether that person is suitable to be appointed to that role. The Court usually does everything by post, rather than holding a hearing.

If you have an existing enduring power of attorney, the attorney may apply to act as a deputy in certain circumstances.

What if no one can speak for me?

If, in the future, you’re unable to make certain important decisions and there’s no one who’s able to speak on your behalf, such as a family member or friend, an independent mental capacity advocate (IMCA) must be instructed to protect your rights.

In this situation, an IMCA must be involved in decisions about serious medical treatment or a change of accommodation. They may also be involved in decisions relating to a care review or adult protection procedures. The staff in the NHS or your local council – for example, doctors, social workers or care home staff – are responsible for instructing an IMCA.

Find out more about IMCAs