Who takes responsibility for your affairs if you don't give anyone Power of Attorney?

No-one can take responsibility for your affairs unless they have been given proper legal authority, or are otherwise protected by the Mental Capacity Act (2005).  For example, day to day decisions regarding a person's personal care can be taken under the MCA without formal authority.  Section 5 of the MCA provides protection from liability for people making such decisions as long as they reasonably believe the person lacks capacity, and that the decision is in the person's best interests.

For more formal decision making, including the management of bank accounts or financial assets, a person will need to have been appointed with the appropriate legal authority.

Under the MCA, once a person has lost mental capacity there are two routes by which this can happen.  Either the person will have made an LPA whilst they still had capacity (or an EPA prior to October 2007) or if they have not, a person (usually a close relative or friend) makes an application to The Court of Protection for permission to be appointed your Deputy.

The Court of Protection was set up by the Justice Secretary, Jack Straw, to deal with the affairs of people who lose the capacity to deal with their own affairs.

The Deputyship process is more expensive and time consuming than making an LPA.  There are also ongoing costs as fees must be paid to The Office of the Public Guardian for supervising the Deputy, and insurance taken out to protect your estate from mismanagement by the Deputy.

The Court of Protection does not necessarily have to appoint a family member as your Deputy.  A Judge will decide whether the applicant is suitable and has the skills required for the specific tasks they are required to carry out. If the judge decides that the person applying is not fit to run the ill or elderly person's affairs he can appoint the local authority or an Official Solicitor instead. Where the person lacking capacity has a large estate then a professional Deputy will almost always be appropriate.

Clearly, where a Local Authority, Solicitor or other professional is appointed they will be entitled to be paid for the time they spend.  This may be considerable as they are required to review all decisions with the incapacitated person if at all possible.

A spokesperson for the Department of Justice has said that the next of kin is not necessarily the most appropriate person to act in such circumstances.

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