Who Can Make Decisions When Someone Has Lost Mental Capacity and There Is No Lasting Power of Attorney in Place?

When someone loses mental capacity it can be an upsetting and difficult time for family and friends. This can be made even more difficult if the person who has lost mental capacity doesn’t have a Lasting Power of Attorney in place meaning that there is nobody with the authority to care for the individuals finances or health and welfare decisions.

What is the Definition of Mental Capacity?

A Lasting Power of Attorney (known as an LPA) can only be put in place whilst a person has mental capacity. Mental capacity can be defined as ‘having the ability to understand information and make decisions about your life’.  A loss of capacity may mean that a person’s ability to make decisions is affected. This could be due to a form of dementia, learning disability or brain injury and not always due to old age. The mental capacity of an individual can be assessed by a medical professional such as a doctor.

Lasting Power of Attorney

What is a Deputy?

In some cases, an individual may have lost capacity before they put a Lasting Power of Attorney in place. Read our blog 5 Reasons to Put a Lasting Power of Attorney in Place for more information. If an individual has lost mental capacity and they do not have a Lasting Power of Attorney in place, then it is possible to apply to the Court of Protection to be a deputy.

A deputy is usually a family member or someone who knows the person well. However, if there is no friend or family member who is suitable or willing to act as a deputy, the Court of Protection can appoint a professional deputy. In some cases, there may be more than one deputy appointed who can act together in the matter however they could be asked to act together and independently meaning they can do either. A deputy has the responsibility of making decisions on behalf of the person who lacks capacity.

The deputy must ensure they:

  • Make sure the decision is in the best interest of that person
  • Help the person to understand why this decision has been made
  • Involve professionals such as doctors if required

The deputy must ensure they do not:

  • Make a decision that benefits them and is not in the best interest of the persons welfare
  • Make a Will for the person or amend their existing Will
  • Hold money in their own name on behalf of the person
  • Assume that a decision previously made is the best decision for everything

What is Property and Financial Affairs Deputyship?

This allows a person to make decisions relation to their money and property. They may need to manage their income and outgoings such as the receipt of any state benefits and ensure that bills and care fees are paid for. In some cases, a person may need to sell their property due to care requirements, the deputy would have the responsibility of managing this.

Furthermore, the deputy must use the assets under their control in a way which benefits the individual who lacks mental capacity and make decisions which is in their best interest.

What is Personal Welfare Deputyship?

This allows a person to make decisions regarding a person’s health and welfare. This could include day-to-day care including what a person wears, their diet or their social activities. Additionally, the deputy must consent to any medical treatment a person may need and ensure this decision is beneficial for that person. If the deputy is unsure, they may need to ask for advice from a different professional such as a consultant or doctor.

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The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.

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