4th July 2025

What are my options if my friend/relative has lost mental capacity and they do not have an LPA?

If your friend/relative’s capacity is questionable, it is a good idea to ask an appropriate medical professional for a mental capacity report. If your friend/relative is the right side of the line according to that report to make a LPA, that should assist you or a lawyer to have the confidence to draft, execute and register a LPA for property and financial matters, and for health and welfare matters if needed.

General medical practitioners increasingly are uncomfortable with carrying out mental capacity reports because they are overwhelmed with the volume of work they have, and many do not feel they have the expertise to carry out this sort of report work. It is generally best finding either a consultant psychiatric-geriatrician or an independent social worker specialising in this advocacy work.

 

But, if your friend/relative is determined incapable and unable to make an LPA, what next?

If their financial assets are quite limited, then there is probably no point looking at a Court of Protection Deputyship Order. For example, if the person you are looking after lives in rental accommodation, and has savings of £8,000, a Deputyship order would be inappropriate, a DWP Appointeeship would be simpler and more cost effective.

A Deputyship order for property and financial affairs should be considered if there are property assets to be dealt with, or larger/more complex financial assets. An example would be ISAs worth £50,000 and savings worth £50,000 together with a house worth £350,000. That would be appropriate for a Deputyship order to be considered.

 

What does a Deputyship application look like?

Deputyship applications can now be made via an electronic portal which can simplify the process. However, the documentation in the preparatory phrase of the work is quite significant. It is not impossible to apply for and get a Deputyship oneself for another, but it is important not to underestimate the difficulties.

You will require a COP3 which is an appropriate medical report detailing the mental capacity of the person. As specified above, getting any formal capacity report can be increasingly difficult, and often lawyers will have contacts who can provide COP3s.

Either you or your lawyer will need to be able to show what all the person’s assets are and their values. You will also need to do that for their liabilities, along with demonstrating that you have a good understanding of what the person’s expenditure, needs and patterns are.

It may be that you wish to sell the property early on; whilst a request can be made within the initial Deputyship application, a Deprivation of Liberty Standard Authorisation is now required for all Court of Protection applications where permission is sought to sell the person’s property, and they reside in a care home.

 

Who can act as a Court of Protection Deputy?

The answer here is whoever is the best fit. It could be a family member, partner or friend, but it is important to understand that the degree of protection oversight upon the acts and omissions of deputies is far more significant than it is for attorneys acting under an LPA. Deputies have no option other than to file annual reports, pay an annual security bond and carry out their duties in line with the Mental Capacity Act 2005.

You can appoint a lawyer who has experience in acting as a professional deputy. They will often have the systems and people behind them so that the operation of the Deputyship runs smoothly. It is important to note that protection work is controlled by the Senior Courts Costs Office (“SCCO”); which means that on an annual basis the lawyers’ fee is reviewed, and they only receive what the SCCO  considers appropriate for the work in question.

If no one is acting for an individual, the local authorities’ social workers will have a greater role in matters. Local authorities will direct those to specialist lawyers who hold appointment on the Court of Protection’s panel of professional deputies. These individuals handle a great number of Court of Protection Deputyships, and they can be experienced and a good option.  They charge the same as private appointed lawyers, which means their costs come out of the estate.

 

As a family member/friend you have the option of allowing local authority’s adult care social workers to choose a local panel deputy for you or you can choose to act yourself and have lawyers to deal with the paperwork for you.

If you do not wish to act as a deputy, you can hire a law firm to act as professional deputies for and on behalf of the person.

At Buss Murton Law, we have vast experience of acting as deputies for individuals under Property and Finance Deputyship orders. We also have experience of interim applications for Statutory Will applications.

For help in this area contact our Tunbridge Wells office on 01892 510 222 or our Cranbrook office on 01580 712 215.

Edward Walter

Edward Walter
Partner