Every year, thousands of families in England and Wales face an unexpected crisis: a parent or spouse loses mental capacity, and no one has legal authority to access their bank account, pay their bills, or make decisions about their care. No matter how close the relationship, the law does not give family members automatic rights to step in.
The only way to obtain that authority, once capacity has been lost, is through an application to the Court of Protection. It is a process that is slower, more expensive, and far more bureaucratic than most families expect.
Why next of kin is not enough
The term "next of kin" is widely misunderstood. In law, it carries very little formal weight when it comes to financial and property decisions. A spouse cannot simply walk into a bank and take over their partner's account because they are married. A son cannot cancel a direct debit on his mother's account, even if he is her only child and she clearly lacks capacity.
Without a registered Lasting Power of Attorney, financial institutions are legally obliged to refuse access. The bank is not being obstructive. It is following the law, which requires formal authority before allowing anyone to act on another person's behalf.
The Court of Protection deputyship process
When no LPA exists, a family member who wants to manage someone's affairs must apply to the Court of Protection to be appointed as a deputy. A deputy has similar powers to an attorney under an LPA, but the process of becoming one is significantly more involved.
The application involves:
- Completing a detailed application pack, typically forms COP1, COP3, and COP4
- Obtaining a medical assessment confirming the person lacks capacity (the COP3 form, completed by a doctor or approved professional)
- Paying the court application fee, currently £371 for a property and financial affairs application
- Waiting for the court to process the application and, in most cases, notify the person who lacks capacity and their close relatives
- Receiving the deputyship order, which sets out exactly what you are and are not authorised to do
- Paying an annual Office of the Public Guardian supervision fee, which ranges from £35 to over £500 depending on the level of supervision required
If the application is complex or contested, solicitor fees can easily add several thousand pounds to the overall cost.
How long does it take?
The Court of Protection has faced significant backlogs in recent years. A straightforward, uncontested deputyship application typically takes between six and nine months from submission to the granting of an order. More complex cases can take considerably longer.
During that period, the family is in legal limbo. Bills may go unpaid. Care arrangements may be uncertain. Significant financial decisions that the person would have wanted made cannot be made. Some banks will release small amounts of money to cover immediate expenses in compassionate cases, but this varies and is not guaranteed.
How quickly things can unravel
A 71-year-old man has a serious stroke and loses capacity within hours. His wife of 40 years cannot access their joint savings account because it is held solely in his name. She cannot cancel his standing orders, access his pension, or instruct his financial adviser. She applies to the Court of Protection. Eight months later, she receives the deputyship order. In the meantime she has borrowed money from her children and spent considerable time navigating a system she had no idea existed.
Deputies face more ongoing obligations than attorneys
Being appointed as a deputy is not the end of the process. Deputies are supervised by the Office of the Public Guardian more closely than attorneys acting under an LPA. Standard supervision requires:
- An annual deputy report submitted to the OPG, detailing all decisions made and all financial activity
- Detailed accounts showing all income, expenditure, and the current value of the person’s estate
- A Court of Protection visitor may be appointed to check on the person and assess how the deputy is performing
- Any significant decision, such as selling a property, may require a separate court order
- Ongoing annual supervision fees payable to the OPG
Attorneys acting under a registered LPA, by contrast, are not routinely supervised. They are trusted to act in the donor’s best interests and are investigated only if a complaint is raised. The difference in administrative burden is significant.
A deputyship gives you roughly the same legal powers as an LPA attorney, but it takes months to obtain, costs more, and carries heavier ongoing obligations. An LPA, set up while the person still has capacity, avoids all of that entirely.
What if the person partially retains capacity?
Mental capacity is decision-specific under the Mental Capacity Act 2005. A person may have capacity to make some decisions and not others. They might be able to decide what to eat or where they want to live, but not be able to manage complex financial transactions.
If there is any doubt, a formal capacity assessment by a doctor or other qualified professional will be needed. The Court of Protection will not grant a deputyship unless it is satisfied the person genuinely lacks capacity for the relevant decisions. Getting this assessment arranged takes time and can add further delay.
If there is an LPA in place
If the donor had the foresight to set up and register an LPA before losing capacity, the attorney named in that document can act immediately, or as soon as the donor lacks capacity for a specific decision. There is no court application, no waiting period, and no mandatory ongoing reporting to the OPG.
What the attorney does need to do is keep thorough, contemporaneous records of every significant decision made. This is where many attorneys fall short, not through dishonesty, but through not understanding what the OPG expects. Good records are the difference between an attorney who can demonstrate they acted properly and one who cannot.
You can read more about exactly what records an LPA attorney should keep in our guide to LPA record keeping, or about how the OPG might become involved in our article on OPG investigations.
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Start your free logFrequently asked questions
Can a spouse automatically manage their partner's finances if there is no LPA?
No. Marriage does not give automatic legal authority over a spouse's finances. Joint accounts held in both names can usually still be accessed, but accounts held solely in one name are frozen to the other spouse without a deputyship order or LPA.
How much does it cost to apply for a deputyship order?
The court application fee for property and financial affairs is currently £371. A medical assessment (COP3) typically costs £100-300. If you instruct a solicitor to manage the application, their fees can range from £1,500 to £5,000 or more depending on complexity. Annual OPG supervision fees then apply once the order is granted.
How long does a deputyship application take?
A straightforward application currently takes between six and nine months from submission to the granting of an order. Complex or contested cases can take considerably longer.
Is a deputyship the same as an LPA?
Similar in effect, but different in how it is obtained and how it is supervised. A deputyship is granted by the court after capacity is lost. An LPA is set up by the donor while they still have capacity. Deputies face more extensive annual reporting obligations and closer OPG supervision than attorneys acting under an LPA.
Can someone set up an LPA if they have already been diagnosed with dementia?
Possibly, yes. A diagnosis of dementia does not automatically mean someone lacks capacity. Capacity is decision-specific and time-specific. If the person can understand what an LPA is, what it means, and what they are agreeing to at the time of signing, they may still have sufficient capacity. A solicitor or doctor can assess this. Acting quickly, before capacity deteriorates further, is important.
What happens to a deputyship when the person dies?
A deputyship ends automatically when the person dies. Authority then passes to the executors named in the will. A deputy has no authority to deal with the estate after death.