What Happens If I Lose Capacity Without an LPA in Place?

What Happens If I Lose Capacity Without an LPA in Place?

 

It is a question most people never think to ask — until they find themselves living the answer.

Every week, families across North Somerset and Bristol discover that a loved one has lost mental capacity, and that no Lasting Power of Attorney is in place. Sometimes it is a gradual realisation — a dementia diagnosis that has finally progressed to the point where daily decisions can no longer be made independently. Sometimes it is sudden and shattering — a stroke, a serious accident, a medical emergency that changes everything in a matter of hours.

In either case, the family faces the same immediate and bewildering reality: the person they love can no longer manage their own affairs, and without a registered LPA, nobody has the legal authority to step in on their behalf.

Not a spouse. Not an adult child. Not a sibling who has been managing things informally for months. Without a valid LPA in place, no family member has any automatic legal authority to access the person's bank account, pay their bills, manage their property, or make decisions about their care.

This article explains exactly what happens in that situation, what the only legal alternative is, how long and costly it is, and why the difference between having an LPA in place and not having one is so significant.

 

The Immediate Practical Consequences

The moment someone loses mental capacity without an LPA in place, the practical consequences for their family begin immediately.

Banks freeze accounts. Financial institutions will not accept instructions from family members without legal authority — even from a spouse or long-term partner. A joint bank account may be frozen if one holder loses capacity and there is no registered LPA. Mortgage payments, utility bills, and day-to-day household expenses cannot be managed from accounts held in the person's name. Money that the family needs — that they have always thought of as accessible — suddenly becomes legally out of reach.

Medical decisions default to clinical teams. Without a Health and Welfare LPA, family members have no legal authority to make decisions about the person's medical treatment, care arrangements, or living situation. Doctors and clinical teams will consult the family as a matter of good practice, and their views will be considered — but the final authority rests with the medical professionals. A family who knows exactly what their loved one would have wanted — about treatment, about care settings, about what matters to them — may find they have no legal standing to enforce those wishes.

Property cannot be managed or sold. If the person owns property — whether mortgaged or unencumbered — decisions about that property cannot be made without legal authority. It cannot be sold, rented, or mortgaged on their behalf. Maintenance decisions that require expenditure cannot be authorised. If the property needs to be sold to fund care, this becomes significantly more complicated and time-consuming without an LPA in place.

Pensions and benefits may be inaccessible. Pension providers, benefit agencies, and HMRC all require legal authority before allowing third parties to manage someone's affairs. Without an LPA, even routine tasks — claiming benefits, managing tax, accessing pension income — become legal obstacles.

The Only Alternative: The Court of Protection

When no LPA is in place and someone has lost mental capacity, the family's only legal option is to apply to the Court of Protection for a deputyship order.

A deputyship order is a court-issued document that appoints someone — usually a close family member or friend — to make decisions on behalf of the person who has lost capacity. It is, in effect, the court's substitute for the LPA that should have been put in place in advance. And while it ultimately achieves a similar result, the process of obtaining it is significantly more demanding than setting up an LPA would have been.

How long does a deputyship application take?

The process of applying for a Deputyship Order to the Court of Protection usually takes four to six months. On average, the court will review the application and, if satisfied, issue the deputyship order in 6 to 10 months — and the court only speeds things up in exceptional circumstances.

It is also important to understand that the clock does not start running from the moment the family decides to apply. It can take a number of months for an application to be put together and submitted, especially if you have to wait for a practitioner to complete a mental capacity assessment. So the total period from the loss of capacity to the grant of deputyship — including preparation time, submission, and court review — can easily stretch to a year or more.

If any of the people who have been notified object to the deputyship application, then the proceedings become contested and can take many more months to resolve.

During all of that time, the family is without the legal authority they need. Bills go unpaid. Property sits unmanaaged. Financial decisions cannot be made. And the person at the centre of it all is in the hands of a process they never chose, overseen by a court that did not know them.

What does a deputyship application involve?

The application process is considerably more complex and burdensome than setting up an LPA. A formal capacity assessment must be carried out by a medical professional before an application can be made. The application itself requires completing multiple detailed court forms, providing comprehensive financial information about the person, and submitting a deputy's declaration in which the applicant sets out their own personal and financial circumstances and demonstrates why they are suitable to be appointed.

Before the application is submitted, the individual who is the subject of the application and at least three close family members or friends must be formally notified that an application is being made. This notification process has its own requirements and timescales.

Once submitted, the Court reviews everything. It may request further information. It may direct that additional parties be notified. And if anyone objects — a family member who disagrees with the choice of deputy, for example — the proceedings become contested and significantly more drawn out.

What does it cost?

The costs of a deputyship application are substantially higher than those of an LPA. The court application fee increased to £408 in May 2024, with additional assessment fees also applying. On top of the court fees, there are typically solicitor's costs for completing and managing the application — a fixed fee of £950 plus VAT is one example of the professional costs involved, though this may not include work associated with a hearing if the court requires one.

And the costs do not stop at the point of appointment. Once appointed, a deputy must be supervised by the Court, and there is an annual supervision fee of £320. Professional deputies appointed in property and financial affairs cases may charge an annual management fee of up to £2,116 plus VAT for the first year and up to £1,672 plus VAT for subsequent years. These ongoing costs are met from the estate of the person who lacks capacity — meaning they reduce the very assets that were intended for the family.

By contrast, the OPG registration fee for an LPA is £92 per document. The difference in total cost — financial, emotional, and practical — is significant.

The deputyship is not the same as an LPA

Even once granted, a deputyship order carries more restrictions than an LPA and involves ongoing court oversight that an LPA does not.

A deputy must submit an annual report to the Office of the Public Guardian, accounting for all income and expenditure on behalf of the person they represent. Major financial decisions may require separate court approval. The scope of the deputy's authority is defined and limited by the court order — and decisions outside that scope require further applications.

The court is very hesitant to appoint health and welfare deputies. Health and welfare deputyships are rarely granted, unless there are a particular set of circumstances. This means that even after going through the full deputyship process for financial affairs, a family may still find they have limited legal authority to make decisions about their loved one's medical treatment and care — one of the most important areas of all.

An LPA, by contrast, is created and registered in advance — covering both financial affairs and health and welfare, exactly as the donor specified, with the attorneys they chose, operating under the conditions they set out. It is personal, immediate, and precisely tailored to the donor's wishes. A deputyship is a court-imposed solution to a problem that did not need to exist.

 

The Rule That Prevents Everything

There is one rule about Lasting Powers of Attorney that makes the situation above entirely preventable — and entirely irreversible once the moment has passed.

An LPA can only be created while the donor still has full mental capacity. Once that capacity is lost, it is legally too late to make one.

This rule exists because an LPA is a document that the donor must be able to understand and sign freely, knowing what powers they are granting and to whom. A person who has lost mental capacity cannot meet that legal requirement. No amount of prior intention, family agreement, or informal arrangement changes this. If the LPA was not put in place before the loss of capacity, the Court of Protection is the only path available.

This is not a technicality. It is a fundamental legal boundary — and it is one that catches families off guard with painful regularity, precisely because the point at which it matters is also the point at which it is too late to act.

There is also a practical dimension to this rule that is worth understanding. Once an LPA is registered with the Office of the Public Guardian, it takes effect immediately — a Health and Welfare LPA can only be used when the donor lacks capacity to make those specific decisions, but the document is ready to activate at any point. Current registration times are 8 to 10 weeks for a correctly completed application. This means there is a window — from the decision to set up an LPA to the point of registration — during which the family is still unprotected. The earlier the LPA is created, the more completely that window is closed.

 

What About Joint Bank Accounts?

One of the most common assumptions families make is that a joint bank account provides a safety net if one partner loses capacity. In practice, this is often not the case.

When one joint account holder loses mental capacity, banks are required to consider the account frozen for the purposes of the incapacitated holder's share. The other account holder may find they cannot make withdrawals, set up new payments, or access the full balance without legal authority in place.

This happens at exactly the moment when the family most needs access to funds — when care costs are mounting, when bills need paying, and when the household finances are already under pressure from the circumstances of the loss of capacity itself.

A registered Property and Financial Affairs LPA prevents this entirely. The named attorney has legal authority to manage the financial affairs on behalf of the donor — including joint accounts — from the moment the LPA is needed.

 

Real Stories — The Difference an LPA Makes

We encounter families on both sides of this experience regularly. The contrast between them is striking.

Without an LPA: A couple in their late sixties — one of whom has a stroke that leaves them temporarily without capacity. The other partner discovers the joint savings account has been frozen. They cannot pay the mortgage. They cannot access the pension. They face a Court of Protection application at a moment when they are already overwhelmed, already frightened, and already exhausted. Months pass before the deputyship is granted. Legal and court fees run into thousands of pounds. The care decisions that needed to be made urgently are made without the clear legal authority the family needed.

With an LPA in place: The same scenario. The stroke happens. The incapacity follows. But within days, the registered LPA is presented to the bank, the mortgage provider, the pension company. The named attorney begins managing the finances immediately. The health and welfare attorney engages with the medical team with full legal standing, advocating for exactly the care and treatment the donor had always wanted. The family is devastated by what has happened — but they are not also battling the legal system. They can focus on what matters.

The documents are otherwise identical circumstances. The outcome is profoundly different.

 

The Right Time to Act

If there is one message in this article, it is this: the right time to set up a Lasting Power of Attorney is before you feel the need for one.

Not when a diagnosis arrives. Not when a health concern becomes serious. Certainly not after capacity has been lost. Those moments are too late — legally, practically, and emotionally.

The best time is now — while you are well, while you have full capacity, while the decision is entirely yours to make calmly and carefully, with the people you trust, in the comfort of your own home.

Setting up both types of LPA — Property and Financial Affairs, and Health and Welfare — takes two home appointments and a few weeks. The protection it provides lasts a lifetime.

 

Talk to Us

We help families across North Somerset, Bristol, Bath, Weston-super-Mare, Clevedon, Portishead, Nailsea, and the surrounding area set up both types of LPA — clearly, professionally, and in the comfort of their own home.

We handle all the paperwork, guide you through every signature, and submit your application to the Office of the Public Guardian on your behalf — correctly, completely, and without unnecessary delay.

Get in touch today for a free, no-obligation consultation. The best time to act is always before you need to.

📞  01934 442030  📧  info@futuraplanning.co.uk 🌐  www.futuraplanning.co.uk

Futura Planning Ltd is a specialist estate planning practice based in North Somerset, serving families across Bristol, Bath, Weston-super-Mare, Clevedon, Portishead, Nailsea, and the surrounding area.

We are fully qualified members of  The Society of Will Writers and as such, you can be assured of receiving a professional service from our Will Writing services.

 

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