Q&A - Can power of attorney be gained after someone has lost mental capacity?

Q: The person I’m caring for has lost their mental capacity, but there is no lasting power of attorney in place. Can I get power of attorney after they have lost their mental capacity?

A: If the person you are caring for has not already appointed an attorney, either by completing a Lasting Power of Attorney or having completed an Enduring Power of Attorney (EPAs can longer be created but if created before October 2007 they are still valid), then you will not be able to get power of attorney after they have lost their mental capacity. The reason for this is because the attorney has to be appointed by the donor at a time when they have mental capacity. 

No one can make a Lasting Power of Attorney on your behalf. If you reach a stage in life where you become mentally incapable to understand the nature and effect of a Lasting Power of Attorney, then you lose the opportunity of putting one in place.

It is worth remembering that a Lasting Power of Attorney is not just for the elderly as illness or accidents can happen to any of us at any time. The consequences of not having a lasting power of attorney are numerous. Firstly you have no say in who the court appoints as your deputy and neither do you have any say in the scope of power granted to your deputy. A deputy’s application could also be refused, so the council may be appointed instead. In addition to all this your family will have to pay extra to apply for and maintain a deputyship and the application can take a long time. Finally, you may not be able to sell jointly held assets until the court appoints a deputy. You need to speak to a solicitor who can advise you in more detail.

(Published 15/06/18)

Victoria Wilson

Victoria Wilson


A Partner and Head of our Probate, Wills, Trusts and Tax team