To create a valid power of attorney a person must have mental capacity. What happens when it is too late?
The answer is that an application can be made to the Court of Protection for a person to be appointed as a deputy, to act on behalf of the person who has lost capacity. Deputies are most often appointed for property and financial affairs; the court appoints health and welfare deputies only in unusual cases.
The application
The person concerned must be assessed by a medical practitioner or other suitable professional as lacking capacity to manage their own affairs, and there is a set form for that assessment. The application itself involves several forms, including a declaration by the proposed deputy and a detailed statement of the person’s assets, income and outgoings.
The court acknowledges the application and a fee, currently £432 (from July 2026), becomes payable. This has to be paid up front, although it can ultimately be reimbursed from the assets of the person concerned. Certain family members and others must be notified of the application and given the opportunity to object.
The right forms have to be completed and served at the correct time. We have the expertise and experience to help you with this, and if necessary we can act as the proposed deputy ourselves.
After the order
Once the order has been issued and the appeal period has passed, it takes effect and operates in much the same way as a registered power of attorney. The deputy must take out a security bond, keep accounts and submit an annual report to the Office of the Public Guardian, which supervises deputies. We advise deputies on all of these duties, and on applications for specific authority, for example to sell the person’s home or to make a statutory will.
Contested matters
We also act where there is a dispute about capacity, about who should be appointed, or about how an attorney or deputy has been acting, including applications to remove an attorney or deputy.