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If I lose capacity, who will manage my affairs?
If you lose capacity and you have not appointed an attorney under a Lasting Power of Attorney, someone can apply to the Court of Protection to be appointed as your deputy to manage your property and financial affairs.
Multiple people can apply, which is often recommended, just in case one person later becomes unable to act or passes away.
Application to the Court of Protection
As part of the application, a doctor will need to sign a form to confirm that you no longer have the capacity to manage your property and financial affairs.
The doctor’s confirmation that you lack capacity, along with information about your finances, will then be submitted to the court. Once the court has acknowledged receipt of the application, certain people, such as family members, will need to be notified.
If no one objects, the court will consider whether the person is suitable to manage your property and financial affairs.
If they decide they are, they will ask the person to put a bond in place, which is an insurance policy in case they mismanage your money. The court will then make an order appointing them. There are sometimes certain limits, such as they cannot sell your property without a further order from the court.
The deputy is appointed - what next?
Once the deputy is appointed, the Office of the Public Guardian (who oversees deputies and attorneys) will get in contact with your deputy to see how they are settling into their role and discuss any issues.
Then, once a year, the deputy will need to submit a report detailing the decisions they have made and how they have managed your money, which includes accounting how they have spent your money. If the Office of the Public Guardian has any concerns after reviewing the report, they will raise this with the deputy and take action if necessary.
How long does the application process take?
The application process can take up to a year and can be more expensive than obtaining powers of attorney.
If none of your friends and family wishes to be appointed, the local authority or a professional may apply to be your deputy. They will charge their time for dealing with your affairs. This could mean your money reduces substantially each year and will leave less for your loved ones when you die.
In relation to health and welfare decisions, it is well known to be difficult to have a deputy appointed to manage someone’s health and welfare. They are usually only appointed when there are decisions that need to be made every day and there has been, or is, contentious with the NHS/care providers.
If there is a one-off decision that needs to be made, such as whether someone should receive a course of treatment or move into a care home, then an application can be made to the Court of Protection in relation to just this one decision.
Due to the delay in getting a deputy appointed, the cost involved and that you will not get to choose who it will be that manages your affairs, we therefore highly recommend you make powers of attorney whilst you have the capacity to do so.
Also, you can appoint an attorney to manage your health and welfare decisions if you wish, meaning the person you chose will have a say in your health and welfare decisions if you lose capacity.