If someone has lost their mental capacity and there is no power of attorney in place, or if a power of attorney has been ended, there are many ways to make sure that the right person makes important decisions on their behalf.
It is not possible to make a new power of attorney once a person has lost their mental capacity. However, it is possible to apply to the Court of Protection for decisions on certain matters. This may not be appropriate in some cases, or if there will be numerous decisions and a continuing need. The Court of protection can appoint someone as a deputy in these situations, which will usually be a family member or someone who knows the person well. A deputy will have the authority to make decisions about a person’s financial and property affairs as well as their personal welfare.
Support and supervision of deputies is provided by the Office of the Public Guardian and a deputy will have to show that they are the best person to be acting as a deputy. The Court of Protection can cancel the appointment of a deputy if they feel that they are not acting in the best interests of the person concerned
If no suitable person can be appointed as a deputy, the Court of Protection can appoint a professional to make these decisions.
For urgent decisions to protect a person’s health or safety, emergency orders can be applied for with the Court of Protection in as little as 24 hours. Interim orders can also be made if, for example, urgent action is needed to pay for a person’s care home fees.
What happens when someone is not acting in the best interests of someone who has lost their mental capacity?
If you have concerns about the actions that an attorney or deputy is making and think that they are not acting in the best interests of someone who has lost their mental capacity you should report your concerns immediately to the Office of the Public Guardian.
If there is a lasting or enduring power of attorney that has not been registered, you can object to its registration.
The Office of the Public Guardian can arrange for a court official to investigate your concerns and in serious cases, the Court of Protection may cancel a lasting or enduring power of attorney.
For help and advice on what to do in the situation where there is no power of attorney, or the when someone is not acting in the best interests of the donor, then contact JMR Solicitors.