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What happens if you do not have a Lasting Power of Attorney and lose mental capacity

If you lose mental capacity as a result of an accident or medical condition, you will either have a Lasting Power of Attorney in place beforehand or you will not. Lasting Powers of Attorney cannot be written after you have lost mental capacity.

If you DO NOT have a Lasting Power of Attorney in place and suffer loss of mental capacity, then the following happens:

  • The Court of Protection will take control of your property and money for the remainder of your life.

  • The court will appoint a Deputy to handle your affairs. Your deputy is usually a spouse, partner or family member. Your deputy will report to the Office of the Public Guardian (OPG). Any family member may apply for deputyship, so this may lead to a dispute within the family.

  • The Office of the Public Guardian will determine the level of supervision you require and the annual fees you pay.

  • Your family may need to use a solicitor to obtain the court order which appoints your deputy. Currently this costs £2000 or more.

  • Your deputy may have to pay for a security bond every year. This is a financial arrangement which protects you from any loss which you may suffer as a result of your deputy's handling of your financial affairs. The judge will set the level of security depending on the circumstances of your case.

  • Until a deputy is appointed your assets will be frozen. This can take the courts a long time - up to 6 months or more if there is a dispute within the family. Any jointly owned property cannot be sold.

  • Your deputy will be require to complete an annual report accounting for all money spent; this includes shopping receipts and other day to day expenses.

  • An initial assessment fee is charged immediately.

  • Thereafter an annual fee (currently up to £320) is charged to pay for the OPG's administration costs.

If you DO have a Lasting Power of Attorney, all these problems can be avoided by giving a trusted family member control over your financial affairs. This means no delays, no courts, no annual reports and no ongoing fees.