Most people assume that if something happened to them – a stroke, a serious accident, a dementia diagnosis – their spouse or family would automatically be able to step in and manage things. Pay the bills. Access the bank account. Make decisions about their care.
That assumption is wrong. And the consequences of not having a Lasting Power of Attorney in place can be serious, costly and deeply stressful for the people you love most.
Nobody enjoys thinking about losing capacity. But planning ahead while you’re well and able is one of the most important things you can do for your family – and one of the most loving. In this guide we cover what happens without an LPA, what the alternatives look like, and why acting sooner rather than later matters.
What Is Mental Capacity and What Does It Mean to Lose It?
Mental capacity means the ability to make and communicate your own decisions. It sounds simple, but in legal terms it’s more nuanced than most people realise.
Capacity can be lost gradually – as with dementia – or suddenly, as with a stroke or a serious accident. It’s also worth knowing that capacity is decision-specific. A person might have capacity to decide what they want for dinner but not to manage complex financial affairs. And for some people, capacity fluctuates – there are good days and bad days.
The Mental Capacity Act 2005 is the legal framework that governs how decisions are made for people who lack capacity. It exists to protect people’s rights and ensure that decisions made on their behalf genuinely reflect their best interests.
Losing capacity doesn’t mean losing all rights. It means that support is needed – and the right legal structures make all the difference to how that support works in practice.
What Is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document that allows you to appoint someone you trust to make decisions on your behalf – either now, or in the future if you lose capacity.
There are two types:
A Property and Financial Affairs LPA covers things like bank accounts, bills, property and investments. It can be used while you still have capacity if you choose, making it a useful practical tool even before any health issues arise.
A Health and Welfare LPA covers medical treatment, care arrangements and day-to-day welfare decisions. This one can only be used once you have actually lost capacity.
Both need to be set up while you still have capacity. You cannot create an LPA after capacity has been lost – which is why timing matters so much.
If you made an Enduring Power of Attorney before October 2007, that remains valid for financial matters – but it doesn’t cover health and welfare decisions. An LPA is broader and more comprehensive.
What Happens If You Lose Capacity Without an LPA?
This is the part most people don’t know – and it matters enormously.
Without an LPA in place, nobody has automatic authority to act on your behalf. Not your spouse. Not your children. Not your closest family members. The length of your relationship or the strength of your bond has no legal bearing on the matter.
Without an LPA, family members cannot access bank accounts in your sole name, pay bills from your funds, manage or sell property, or make decisions about your medical care or living arrangements.
The only legal route available to them is to apply to the Court of Protection for a Deputyship order. And that process is significantly more complex, time-consuming and expensive than simply having an LPA in place from the outset.
What Is the Court of Protection and How Does Deputyship Work?
The Court of Protection is the legal body responsible for making decisions about financial or welfare matters for people who lack mental capacity and have no LPA in place.
A Deputyship order appoints someone – usually a close family member – to act on behalf of the person who has lost capacity. As with LPAs, there are two types: one covering property and financial affairs, and one covering personal welfare.
The process is not straightforward. Applications typically take several months – sometimes longer – and involve significant legal costs. Once appointed, deputies must submit annual accounts to the Office of the Public Guardian and are subject to ongoing supervision. The court fees, solicitor costs and supervision fees combined make Deputyship considerably more expensive than an LPA would have been.
And in the meantime – while that application is being processed – the family may be left completely unable to manage even the most basic financial affairs. Bills go unpaid. Care fees can’t be met. Property can’t be dealt with. Family members may end up funding costs from their own pockets while they wait for the court to act.
Real-Life Consequences of Not Having an LPA
Financial Hardship
Joint bank accounts can be frozen or restricted when one account holder loses capacity. Bills, mortgage payments and care fees may go unpaid during the months it takes to obtain a Deputyship order. Family members often end up covering costs themselves in the interim. And property – including the family home – cannot be sold without Court of Protection authority, which can cause serious practical problems at exactly the wrong moment.
Decisions About Care and Medical Treatment
Without a Health and Welfare LPA, family members have no legal right to make decisions about a loved one’s medical care. Healthcare professionals are required to follow the Mental Capacity Act framework – which means consulting the family, but not being legally bound by what they say.
A person’s known preferences about medical treatment may not be followed. If family members disagree about what the right course of action is, there’s no named attorney to make the final call. Disputes become harder and more distressing to resolve – at a time when everyone is already dealing with something enormously difficult.
Added Stress at an Already Difficult Time
Families dealing with a loved one losing capacity are already under enormous emotional pressure. Adding legal complexity, Court of Protection applications, financial uncertainty and potential family conflict to that situation makes everything considerably harder.
An LPA removes that burden entirely. That’s its real value – not just the practical authority it provides, but the peace of mind it gives to everyone involved.
Common Misconceptions About Mental Capacity and LPAs
“My spouse will automatically be able to manage everything.” They won’t – not without an LPA. Marriage gives no automatic legal authority to manage another person’s financial affairs or make medical decisions on their behalf.
“I’m too young to need one.” Capacity can be lost at any age – through a road accident, a brain injury, a sudden illness. Youth is not protection.
“I’ll sort it out if I need to.” You can’t. An LPA must be set up while you have capacity. Once that window closes, the option is gone.
“My family know what I’d want.” Knowing someone’s wishes and having the legal authority to act on them are two completely different things.
“It’s too expensive.” The cost of an LPA is significantly lower than the cost of a Court of Protection application – and far lower than the financial and emotional cost of not having one in place.
“I trust my family to sort it out between themselves.” Without legal authority, good intentions simply aren’t enough. The system doesn’t bend for good intentions.
What Is the Difference Between a Property and Financial Affairs LPA and a Health and Welfare LPA?
The two types of LPA cover entirely different areas of your life – and both are worth having.
A Property and Financial Affairs LPA can be used while you still have capacity if you choose, and it covers everything financial – bank accounts, investments, property, bills and expenses. It’s practical from day one and becomes essential if capacity is lost.
A Health and Welfare LPA can only be used once you have lost capacity. It covers decisions about your medical treatment, care arrangements, day-to-day welfare and – critically – life-sustaining treatment decisions.
You may want to appoint the same person as attorney for both, or different people depending on their strengths and your circumstances. Someone who is great at managing money may not be the right person to make sensitive medical decisions – and vice versa. It’s worth thinking carefully about both appointments.
How Do You Set Up a Lasting Power of Attorney?
Both types of LPA follow the same process. Forms are completed, signed, witnessed and then registered with the Office of the Public Guardian. Registration currently takes several weeks – so it’s important not to leave it until capacity is already in question.
The registration fee is currently £82 per LPA. Reduced fees or exemptions are available for people on lower incomes.
A solicitor can make sure the documents are correctly drafted and properly executed. Errors in an LPA can invalidate it entirely – which defeats the whole purpose. At Liberay Legal, we can handle the whole process on your behalf, making sure everything is done correctly from the outset.
Who Should You Appoint as Your Attorney?
This decision deserves careful thought. Your attorney will have significant power over your affairs – potentially for a long time – so the person you choose matters enormously.
Think about whether they are organised, financially responsible and emotionally resilient enough to handle the role. Consider whether they live nearby or could realistically manage the responsibilities involved. Think about whether they would be able to make difficult decisions calmly and impartially, particularly where other family members are involved.
You can appoint more than one attorney, either to act jointly – meaning they must agree on every decision – or jointly and severally, meaning each can act independently. The latter is generally more practical.
It’s also worth appointing a replacement attorney as a backup, in case your first choice is unable to act when the time comes. And before you name anyone, have the conversation with them. Make sure they understand what the role involves and that they’re willing to take it on.
When Is the Right Time to Set Up an LPA?
As soon as possible. That’s the honest answer.
Capacity can be lost suddenly and without any warning. A stroke, a serious accident, an unexpected diagnosis – none of these give advance notice. Setting up an LPA while you’re well and able is straightforward. Waiting until it might be needed risks leaving it too late.
Many people set up their LPAs at the same time as making or reviewing their will – it makes sense to deal with both in one appointment while everything is front of mind. Both can be handled together at Liberay Legal, making the process as efficient and straightforward as possible.
Review your LPA periodically too. Circumstances change – attorneys move away, relationships shift, your own situation evolves. An LPA that names someone who is no longer the right choice needs updating.
Frequently Asked Questions
Can I set up an LPA if I’ve already been diagnosed with dementia?
Potentially yes, if you still have capacity at the time of making it. Early diagnosis doesn’t automatically mean capacity has been lost – but it does make acting quickly very important. Get advice as soon as possible.
What is the difference between an LPA and a Deputyship?
An LPA is set up in advance, while you still have capacity, and is straightforward to create. A Deputyship is a court order obtained after capacity has been lost – it’s more complex, more expensive and takes considerably longer.
How long does it take to register an LPA?
Registration with the Office of the Public Guardian currently takes several weeks. Factor this in – don’t wait until capacity is in question before starting the process.
How much does a Lasting Power of Attorney cost?
The Office of the Public Guardian registration fee is currently £82 per LPA. Solicitor fees vary depending on your circumstances – at Liberay Legal we offer transparent pricing with no hidden surprises.
Can I have more than one attorney?
Yes. You can appoint multiple attorneys to act jointly, jointly and severally, or a combination of both. You can also appoint replacement attorneys as a backup.
What happens if my attorney dies or is unable to act?
If you’ve appointed a replacement attorney, they step in. If not, and your sole attorney is unable to act, you may need to apply to the Court of Protection – which is another reason to appoint a replacement from the outset.
Can an LPA be cancelled?
Yes – provided you still have mental capacity, you can revoke an LPA at any time. Once capacity is lost, it can no longer be cancelled by you.
Does an LPA cover decisions made abroad?
An LPA is a document created under English and Welsh law. Whether it is recognised abroad depends on the country in question. If you have assets or interests overseas, specific advice is recommended.
What is the Office of the Public Guardian?
The Office of the Public Guardian is the government body responsible for registering LPAs and supervising deputies appointed by the Court of Protection.
Don’t Leave It Too Late
Setting up a Lasting Power of Attorney is one of the most practical and loving things you can do for the people who matter most to you. It removes uncertainty, prevents legal complexity at the worst possible time, and gives your family the authority to act on your behalf without having to fight through the courts to do it.
At Liberay Legal, we make the process straightforward. Our private client team handles both types of LPA – alongside wills and wider estate planning – in plain English and with transparent pricing from the outset. Many clients set everything up in a single appointment.
Get in touch today for a free initial consultation. There’s no obligation and no pressure – just clear, practical advice when you need it most.
Contact us here or call 03330 115 105.
