What Happens If Someone Loses Capacity Without a Lasting Power of Attorney?

ByNeil Taylor

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From the Wills and Probate Team at Phillips Solicitors

Many people assume that a spouse, partner, or child will automatically be able to manage their affairs if they lose mental capacity. Unfortunately, this is not usually the case.

If someone loses the ability to make decisions for themselves and there is no valid Lasting Power of Attorney (LPA) in place, family members may not have the legal authority to deal with important financial or welfare matters on their behalf. In these circumstances, an application to the Court of Protection may be required.

Why Can This Cause Difficulties?

Without an LPA, organisations will often require formal authority before allowing someone else to act.

This can affect matters such as:

  • Accessing bank and savings accounts.
  • Paying household bills and care fees.
  • Managing investments.
  • Selling or dealing with property.
  • Claiming benefits and pensions.
  • Making certain decisions about care arrangements.

Even close family members do not automatically have authority to deal with these matters simply because of their relationship to the person concerned.

What Is Deputyship?

Where a person has lost capacity and no valid LPA exists, an application can be made to the Court of Protection for the appointment of a Deputy.

A Deputy is a person authorised by the Court to make decisions on behalf of someone who lacks the mental capacity to make those decisions for themselves.

The Court decides:

  • Whether a Deputy is required.
  • Who should be appointed.
  • What decisions the Deputy is authorised to make.

The Deputy’s powers are limited to those contained within the Court Order.

Who Can Apply to Become a Deputy?

A Deputyship application can usually be made by:

  • A husband, wife, or civil partner.
  • An adult child.
  • Another relative.
  • A close friend.
  • A professional adviser, such as a solicitor.

The Court will consider whether the proposed Deputy is suitable and whether the appointment is in the person’s best interests.

Why Is an LPA Usually Easier?

In most cases, putting an LPA in place while a person still has mental capacity is simpler, quicker, and more flexible than applying for Deputyship after capacity has been lost.

An LPA allows a person to choose who they want to act for them, whereas with Deputyship the decision ultimately rests with the Court.

A Deputyship application can also involve:

  • Medical evidence of incapacity.
  • Court application forms and supporting documents.
  • Court fees and ongoing supervision requirements.
  • Longer timescales before authority is granted.

For these reasons, many people choose to put LPAs in place as part of their future planning.

How Phillips Solicitors Can Help

Our Wills & Probate and Court of Protection team can advise on capacity issues and help families understand the options available.

We can:

  • Advise whether a Deputyship application is required.
  • Prepare Court of Protection applications.
  • Assist with Deputyship appointments.
  • Advise existing Deputies on their responsibilities.
  • Prepare and register Lasting Powers of Attorney.
  • Provide practical support throughout the process.

Our aim is to make a complex and often stressful situation easier to understand and manage.

Contact Us

If a loved one has lost capacity and there is no Lasting Power of Attorney in place, contact Phillips Solicitors to arrange an appointment with our Wills & Probate team.

Planning ahead with an LPA is usually the simplest option, but where capacity has already been lost, we can help guide you through the Deputyship process.

You can contact us online or call 01623 658556 (option 4).

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This article is general information only and is not legal advice on any individual case. The correct advice will depend on the facts, documents, family circumstances, and capacity position.

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