Understanding Loss of Capacity Without an LPA

22 May, 2025 4 minutes reading time

When a loved one’s mental capacity declines, it’s incredibly tough. If they haven’t set up a Lasting Power of Attorney (LPA), the next step often involves the Court of Protection. We frequently discuss this with our clients, so here’s a clear look at the Court’s role and what deputies are responsible for in these sensitive situations.

The Court of Protection

The Court of Protection is a specialist court in England and Wales. It’s dedicated to safeguarding the interests of individuals who struggle to make their own decisions due to mental capacity challenges. This includes overseeing their finances and making choices about their health and living conditions.

The Court plays a vital role. It ensures vulnerable individuals receive necessary support and protection from potential exploitation. Ultimately, the Court aims to empower individuals to live fulfilling lives while upholding their rights and welfare.

Its responsibilities include:

1. Assessing Mental Capacity: The Court first confirms whether an individual genuinely lacks the capacity to make their own decisions. The law presumes they have capacity unless proven otherwise.

2. Making Specific Decisions: The Court can issue orders for immediate, one-off issues where no LPA exists. This might involve approving the sale of a property to cover care costs or consenting to specific medical treatment.

3. Appointing Deputies: This is a primary role of the Court when there’s no LPA. A deputy is appointed if ongoing decisions regarding finances, property, or welfare matters are needed.

4. Overseeing and Supervising: The Court supervises deputies to ensure they always act in the best interests of the individual they represent.

What Are Deputies?

The Court of Protection appoints deputies to make ongoing decisions for individuals who lack mental capacity. Typically, deputies are family members or close friends. However, if no appropriate family member is available or the financial circumstances are intricate, the Court may appoint a professional deputy.

There are two main types of deputies:

1. Property and Financial Affairs: This deputy manages the individual’s money, pays bills, oversees bank accounts, handles investments, and manages property. This is the most common type of deputyship.

2. Personal Welfare: This deputy makes decisions regarding the individual’s healthcare and living arrangements. The Court tends to be more cautious when appointing these deputies. This caution arises because many of these decisions are usually made by medical professionals and family members in accordance with the Mental Capacity Act.

A Deputy’s Important Responsibilities

Being a deputy carries significant responsibility with serious legal duties. All deputies must follow the rules outlined in the Mental Capacity Act 2005.

Deputies must:

1. Act in the Person’s Best Interests: This is the most crucial rule. Every decision a deputy makes must prioritise the best interests of the individual they represent. This involves considering their previous wishes, feelings, beliefs, and values, importantly in conjunction with members and professionals.

2. Encourage Participation: Deputies should promote the person’s involvement in decisions as much as possible, even if their capacity is limited.

3. Keep Good Records: Deputies must keep precise records of all decisions and expenses. These details are included in the annual report submitted to the Office of the Public Guardian (OPG).

4. Keep Finances Separate: A financial deputy must always ensure that the individual’s money and assets are kept entirely distinct from their own.

5. Obtain a Security Bond: Most financial deputies must secure a security bond. This type of insurance protects the person’s assets from any financial errors made by the deputy.

6. Provide Annual Reports: Deputies must submit a yearly report to the OPG, outlining their actions and the individual’s financial situation. The OPG oversees deputies to ensure they fulfil their responsibilities correctly.

Using Professional Deputies

While family members often assume the role of deputy, a professional deputy can sometimes be a more suitable choice. This may be due to the following reasons:

1. The person’s finances are very complicated (for example, they’ve received a large sum from a personal injury claim).
2. There’s no suitable family member available or willing to be a deputy.
3. Family disagreements could make managing affairs difficult.

Furthermore, professional deputies, often solicitors, offer an impartial, knowledgeable, and experienced approach. They are regulated and held to high standards, ensuring decisions are always made purely in the individual’s best interests, without personal bias.

Our Advice

Dealing with a loved one losing capacity is challenging, especially without a Lasting Power of Attorney (LPA). Our firm offers compassionate legal guidance to families. Our specialist lawyers can help you explore your options, whether applying to become a deputy, assisting with deputy duties, or advising on the Court of Protection’s role in safeguarding your loved one.

Please contact us if you are concerned about a loved one’s capacity or lack of an LPA. We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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