A Lasting Power of Attorney (LPA) is a legal framework that lets you appoint trusted individuals to manage your affairs if you can no longer do so. It is a useful legal document that many people delay making, which can cause considerable difficulties.
In cases where you lose your mental capacity and don’t have a Lasting Power of Attorney in place, several problems can develop. In this article, we will look at what happens if you lose mental capacity without having made a Lasting Power of Attorney, the risks that arise, and how Elite Law Solicitors can assist you or your loved ones.
If you are considering getting a Lasting Power of Attorney, get in touch today and book a free initial consultation with one of our Private Client Lawyers by calling 0800 086 2929, emailing info@elitelawsolicitors.co.uk or by completing our Free Online Enquiry Form.
What does mental capacity mean?
Mental capacity is a person’s ability to make their own informed decisions by understanding a situation, the options available and the consequences of the decision made. Under the Mental Capacity Act 2005, a person is considered to have capacity if they can:
- Understand the information relevant to a decision
- Retain that information
- Use or weigh that information as part of the decision-making process
- Communicate the decision in any form
Capacity is assessed on a decision-specific basis. A person may be able to make certain decisions (such as choosing what to wear) but lack the capacity to make more complex decisions (such as managing finances or agreeing to medical treatment).
Loss of mental capacity can occur gradually, as in cases of dementia, or suddenly as a result of an accident, stroke, or illness.
Why is a Lasting Power of Attorney important?
A Lasting Power of Attorney is important because it gives you control over your future care, finances and property. This legal document allows you to appoint now one or more attorneys to make decisions on your behalf if you become unable to do so. There are two types:
- Health and welfare LPA, for decisions about medical treatment, care, and day-to-day wellbeing
- Property and financial affairs LPA, which is used for decisions about money, bills, property, and investments
An LPA must be created while you still have mental capacity. Once capacity is lost, it is too late to make one, and your family cannot create one on your behalf.
What happens if you lose capacity without a Lasting Power of Attorney?
In cases where you lose mental capacity without a Lasting Power of Attorney in place, your next of kin would not have automatic authority to manage your affairs. Without authority, your family cannot sell your property or manage your investments. This also means that they cannot access your pension or insurance arrangements or pay for maintenance, upkeep or repairs for your property or assets. This may lead to deterioration of assets or financial losses.
Another common issue that stems from having no LPA in place is you cannot access the money needed for suitable care. If you need professional care, fees may accumulate faster than your family can obtain legal authority to access your funds. This can cause debt, inability to secure suitable care or delayed medical and social support.
Once you have lost mental capacity your next of kin would have to apply for a Deputyship Order at the Court of Protection
What is a Deputyship Order?
If you lose capacity without a Lasting Power of Attorney, your family, friends, or sometimes a professional adviser must apply to the Court of Protection to become your Deputy in order to have authority to manage your affairs. A Deputy has similar powers to an attorney, with a few distinctions:
- They must be appointed by the Court
- The process can take many months
- The cost is significantly higher than creating an LPA
- Annual reporting and supervision are required
Your bills and financial obligations may go unpaid
During the period between losing capacity and the Deputy being appointed, your finances can be frozen. This can have several knock-on effects, such as failed direct debits and other bills going unpaid.
Even joint accounts can be restricted in some cases. This can cause serious financial hardship and stress for family members trying to manage your affairs.
There may be no one to make immediate health and welfare decisions
Without a Health and Welfare LPA, medical professionals will make decisions based on your best interests. While they may consult your family, they are not legally obliged to follow their wishes. This can lead to disagreements about treatment, delays in care decisions and stress for loved ones struggling to advocate for you.
Only with a Health and Welfare LPA can your chosen attorneys make decisions such as whether you should receive life-sustaining treatment, where you should live, and what care you should receive. You are also able to record your preferences regarding your care and life sustaining treatment in your Health and Welfare LPA.
The Court may appoint someone you would not have chosen
When deciding who should act as Deputy, the Court considers who has applied, their suitability and any potential conflicts of interest. It does not, and cannot, factor in your own thoughts or feelings if you have lost mental capacity which is why making a Lasting Power of Attorney whilst you have mental capacity is preferable as you can chose who to appoint yourself.
If there are disagreements within the family, or if the Court does not consider your relatives suitable, the Court may appoint an independent solicitor, a professional Deputy or a local authority representative. This means that someone you may not know, or would not personally have chosen, could end up managing your affairs.
How Elite Law Solicitors can help
How Elite Law Solicitors can helpElite Law Solicitors offer expert advice on all aspects of Lasting Powers of Attorney, mental capacity, and future planning. We are an experienced team of legal professionals who can help with:
- Preparing and registering LPAs for both financial and health decisions
- Ensuring your documents reflect your wishes, including preferences and instructions
- Advising families on Deputyship applications where no LPA exists
- Handling Court of Protection processes, including complex or disputed applications
- Providing clear advice on safeguarding assets, decision-making rights, and long-term planning
With specialist knowledge in LPA and Court of Protection matters, Elite Law Solicitors can guide you smoothly through every stage of the process to ensure full legal protection.
By creating a Lasting Power of Attorney while you still have mental capacity, you retain control, reduce stress for your loved ones, and ensure that your affairs are managed exactly as you would want.
For clear, personalised advice on preparing an LPA or dealing with issues arising from loss of capacity, please book a free initial consultation by calling 0800 086 2929, emailing info@elitelawsolicitors.co.uk or by completing our Free Online Enquiry Form.
