Further Information
Unfortunately many people who do lose capacity have not appointed an attorney. This can leave the family of the person lacking capacity in a difficult position. Without capacity and with no attorney under a LPA there is no one with the legal authority to handle your financial affairs (other than some state benefits). You may think that a bank would allow you to deal with an account in your spouse’s name or that you could sell your jointly owned house. This is not the case. The only option is to make an application to the Court of Protection for a deputy to be appointed to deal with the affairs of the person who no longer has capacity. The court takes power from you and gives it to the deputy who may well not be a person who you would have chosen. This is quite different to the LPA where you give power to someone you have chosen who acts according to your express wishes. The requirements of the court are rigorous and place obligations on the deputy.
The Mental Capacity Act 2005 aims to ensure that individuals are empowered to make as many choices as possible so care is needed to ensure your deputy or attorney are of the highest calibre and able to appreciate that just because you can’t exercise decisions on complex financial investments does not mean you can’t decide for yourself whether you’d like to spend on new clothes or a meal with friends. Capacity is not an all or nothing decision.
It may be the case in some families that nobody wishes to act as a deputy and of course many people have no family. In these cases odonnells solicitors have considerable experience in applying to become the deputy and of managing financial affairs.
This is only a general outline of the law which can change. For specific cases you should obtain legal advice.
Odonnells is a partnership of qualified solicitors regulated by the Solicitors Regulation Authority (registration number 74299) who have chosen not to limit liability to clients or the public.