What happens if someone loses mental capacity without a Lasting Power of Attorney (LPA)?
Losing mental capacity is something none of us like to think about, but it’s a reality that can happen due to illness, injury, or age-related conditions. A Lasting Power of Attorney (LPA) is designed to make sure that someone you trust can step in to make decisions on your behalf if you can’t. But what if there’s no LPA in place when that time comes.
Mental capacity means being able to make and communicate decisions for yourself. This could be about your finances, healthcare, or day-to-day living. If you lose this ability, you can no longer legally set up an LPA – it must be done while you still have capacity.
If someone loses capacity without an LPA, their loved ones do not automatically have the legal right to manage their affairs – even if they are a spouse, partner, or child. Instead, the only route is through the Court of Protection.
To gain authority, a family member, friend, or professional must apply to be a Deputy. This involves:
- Filling in detailed application forms explaining why they should be appointed.
- Providing medial evidence confirming the loss of capacity.
- Paying court fees (which can be significant).
- Waiting several months for the court to decide, and this can be a lengthy process.
Once appointed, a Deputy can make decisions about finances, property, but their powers are often more limited than those granted under an LPA.
Sometimes a health and welfare Deputy can be appointed but this is very rare.
Although the Court of Protection process provides a legal solution, it is often far from straightforward and can create significant difficulties for families. Such as:
- Delays – The court process can take months, leaving bills unpaid or care decisions delayed as nobody has the authority to access funds.
- Costs – Application feed, legal costs and ongoing supervision fees can add up.
- Stress – It can be emotionally draining for loved ones during an already difficult time as they have limited resources to help.
- Limited choice – The court decides who becomes Deputy, which may not be the person you would have chosen.
Setting up an LPA while you have capacity is far simpler, quicker, and cheaper than going through the Court of Protection. It gives you control over who will make decisions for you and it will be someone you trust, and feel will make the best decisions for you when the time comes. And ensures your wishes are respected.
When planning for your future you could ask your solicitor who is dealing with your Will if they could help with your LPAs at the same time.
Hayley Wintrup is a caseworker in the later life team at Barker Gotelee Solicitors in Suffolk.
For more information on our range of legal services, including information surrounding Wills and LPAs, please call the Private Client Team on 01473 611211 or fill out our enquiry form.
