If someone loses mental capacity without a Lasting Power of Attorney, nobody has automatic legal authority to manage their money or make decisions about their care. Not their husband or wife. Not their children. The family has to apply to the Court of Protection for a deputyship, a process that commonly takes four to six months and costs hundreds of pounds before anyone can act.
I have sat with families in the middle of this. A daughter paying her mother’s care home fees from her own savings because her mother’s account is frozen. A husband who cannot get the bank to speak to him about his wife’s pension. They love the person, they know exactly what she would have wanted, and the law still says no.
This guide is for two kinds of reader. If someone you love has already lost capacity, I will explain what deputyship involves and what to do first. If you are reading this while everyone is well, I will show you why a Lasting Power of Attorney is so much better. Everything here applies to England and Wales only.
What it is: a Court of Protection order appointing someone to make decisions for a person who has lost capacity When it is needed: when there is no registered Lasting Power of Attorney
Typical timescale: four to six months, sometimes longer
Court fee: £432 per application, plus a possible £266 hearing fee
Ongoing costs: £100 assessment fee, then up to £320 a year in supervision fees
The alternative: an LPA, registered for £92, chosen by you while you still have capacity
Under the Mental Capacity Act 2005, everyone is assumed to have capacity unless it is shown otherwise. A person lacks capacity for a particular decision if they cannot understand the relevant information, retain it, weigh it up, or communicate their decision.
Two things about this matter a great deal. First, capacity is decided one decision at a time. Someone may be able to choose what to eat but not manage a pension. Second, it can be temporary. A stroke, a head injury or a period of serious illness can take capacity away for weeks or months, and it may return.
The causes I see most often are dementia, stroke, brain injury after an accident, and severe mental illness. Only some of these come with any warning.
The moment someone loses capacity, anything in their sole name becomes very difficult to deal with. In practice, that usually means:
To take control of the person’s finances, the family has to apply to the Court of Protection to be appointed as a deputy.
A deputyship is a court order giving someone, called a deputy, legal authority to make decisions for a person who has lost capacity. There are two types.
This is by far the most common. The deputy can pay bills, collect the person’s pension and benefits, manage their bank accounts and, with the court’s permission where required, deal with their property.
This covers decisions about care and medical treatment. The court only appoints personal welfare deputies in limited circumstances, for example where family members disagree about care. In most cases, health and care decisions are left to professionals acting in the person’s best interests. That is a significant difference from a Health and Welfare LPA, where you choose who makes those decisions for you.
Our fee for a single LPA drops from £300 to £255, or from £600 to £510 for both types together. Use code 15OFF by 31 October. The Office of the Public Guardian’s £92 registration fee per LPA is separate and not discounted.
Every application is different, but most follow these stages:
From start to finish, families commonly wait four to six months, and longer if anything is missing or disputed.
These are the current GOV.UK fees for a deputyship in England and Wales:
If a solicitor prepares the application, their fees are on top, and they can run to well over a thousand pounds. Compare all of that with £92 to register a Lasting Power of Attorney.
Being appointed is not the end of it. Deputies must act in the person’s best interests, keep their money completely separate from their own, keep records of every decision and send a report to the Office of the Public Guardian every year. There are also limits. A deputy cannot make a will for the person without a separate court application, and making gifts from their money is tightly restricted.
Many deputies do this for years, often while also caring for the person. It is a responsibility that family members take on out of love, but it is a heavy one.
Not necessarily, and this is the single most important thing in this guide if you are worried about a parent or partner right now.
A diagnosis of dementia does not automatically mean someone has lost capacity. Because capacity is decided decision by decision, a person in the early stages may still understand what an LPA is, who they want to appoint and what they are giving those people the power to do. If so, they can still make one. Speak to their GP, involve a certificate provider who knows them, and do it quickly. When that window closes, deputyship is the only route left.
If your loved one’s only income is state benefits, there is also a narrower option: the Department for Work and Pensions can appoint you as their appointee to manage those benefits, without going to court.
The difference comes down to who decides. With a Lasting Power of Attorney, you choose the people you trust, while you are well, and they can act as soon as it is needed. With a deputyship, a court chooses after the event, your family waits months, and the supervision and paperwork continue for as long as it lasts.
This is exactly why Martin Lewis keeps telling people to set one up. I have explained why he is right about power of attorney in more detail, and you can read about choosing attorneys and the two types of LPA in our complete guide to Lasting Powers of Attorney.
With code 15OFF, one LPA costs £255 instead of £300, or £510 instead of £600 for both types together. Offer ends 31 October. The Office of the Public Guardian’s £92 registration fee per LPA is separate and not discounted.
Whether you are planning ahead or facing this right now, we are happy to talk it through. If your loved one may still have capacity, we can help them set up a Lasting Power of Attorney before that window closes, with 15 per cent off until 31 October. If you are not sure where you stand, call us on 01858 451 042 for an honest conversation about your options.
A deputyship is a court order that gives someone legal authority to make decisions for a person who has lost mental capacity and did not make a Lasting Power of Attorney. The deputy is appointed by the Court of Protection in England and Wales. A property and financial affairs deputy deals with money, bills, pensions and property. A personal welfare deputy makes decisions about care and medical treatment, although the court only appoints these in limited circumstances. Deputies are supervised by the Office of the Public Guardian and must send it a report every year.
A deputyship application commonly takes four to six months from submission to the court issuing the order, and it can take longer if the application is incomplete, someone objects, or the court decides a hearing is needed. Before you can apply, you also need a capacity assessment from a doctor or other qualified professional, which adds time. During this period nobody has legal authority to manage the person’s money in their sole name, which is why many families face months of difficulty paying bills and care fees.
The Court of Protection application fee is £432, and you pay it twice if you apply to be both a property and financial affairs deputy and a personal welfare deputy. There may be a £266 hearing fee if the court decides a hearing is needed. New deputies pay a £100 assessment fee to the Office of the Public Guardian, followed by an annual supervision fee of £320, or £35 in some cases where the person has less than £21,000. Some deputies must also pay for a security bond, and professional help costs extra.
Sometimes, yes. A dementia diagnosis does not automatically mean a person has lost capacity. Under the Mental Capacity Act 2005, capacity is decided one decision at a time, and someone in the early stages of dementia may still understand what a Lasting Power of Attorney is and who they want to appoint. If that is the case, they can still make one. It is important to act quickly and to involve a certificate provider, and ideally their GP, to confirm they understand what they are signing.
An attorney is chosen by you, in advance, through a Lasting Power of Attorney made while you still have capacity. A deputy is appointed by the Court of Protection after you have lost capacity, usually because no LPA was made. Attorneys are your own choice and can act as soon as the LPA is registered and needed. Deputies are chosen by the court, take months to appoint, pay annual supervision fees and must report to the Office of the Public Guardian every year. Making an LPA keeps the decision in your hands.
Not if the account is in their sole name and they have no Lasting Power of Attorney. Being their child, or their spouse, gives you no automatic right to manage their money. Joint account holders can often keep using a joint account, but other accounts, savings and investments are likely to be frozen. If your parent’s only income is state benefits, you can ask the Department for Work and Pensions to make you their appointee. For anything else, you will usually need to apply to the Court of Protection to become their deputy.
Anyone aged 18 or over can apply to be a deputy, and it is usually a relative or close friend of the person who has lost capacity. To be a property and financial affairs deputy you must not be bankrupt or subject to a debt relief order. Professionals such as solicitors, and in some cases local authorities, can also act as deputies, but they charge for their time. The Court of Protection decides whether to appoint you, and it can refuse if someone objects or if it has concerns about your suitability.
Free Guidance
Our guides are designed to help you get the information you need. Each one has been written by either Phil Izzard or Jane Morris-Rowlinson. If you can’t find what you’re looking for, call us.
When someone loses capacity without a Lasting Power of Attorney, their family faces the Court of Protection. Here is what deputyship involves, what it costs, and what you can still do.
Every autumn Martin Lewis tells the nation to sort out a Lasting Power of Attorney. After twenty years of helping families, I can tell you he is right, and here is why it matters more than most people realise.
Free Wills Month is a good thing. But a will is one of the most important documents you will ever sign, and it deserves more than a quick appointment. Here are the questions I would ask first.
Wills, Lasting Powers of Attorney and probate, guided by the same legal professionals whether you do it yourself online, over a call, or face to face. England and Wales, without the traditional law firm price tag.
