What happens if you lose capacity without a power of attorney
A stroke, a serious accident, or the slow progression of dementia can all mean someone is suddenly unable to make their own decisions. Most families assume that in this situation, a spouse or adult child can simply step in and take over: pay the bills, speak to the bank, make decisions about care. In England and Wales, that assumption is wrong. Without a Lasting Power of Attorney (LPA) in place, no one, not even a spouse, automatically has the legal right to manage another adult's finances or make decisions on their behalf.
How common is this gap?
More common than most people realise. A 2022 survey of 2,000 UK adults for Canada Life found that 78% had not registered an LPA, including 77% of those over 55. The same research noted that even a straightforward LPA application can take around 20 weeks to process once submitted, time that isn't available once capacity has already been lost.
The need for this is not abstract. Alzheimer's Society estimates there are currently around 982,000 people living with dementia in the UK, a figure projected to rise to 1.4 million by 2040, and dementia is only one of several causes of lost capacity, alongside stroke, brain injury and other conditions. An LPA has to be made while someone still has capacity to make it. Once capacity is lost, it's too late to set one up, whatever the family's wishes.
What happens instead
Without an LPA, the only route left is an application to the Court of Protection to become a "deputy," a court-appointed person authorised to make decisions on someone else's behalf. GOV.UK's own guidance is direct about the difference: without an LPA, "your family and friends would need to apply to the Court of Protection... this can be a lot more expensive and time-consuming than making an LPA."
That difference in practice is significant:
- Registering an LPA costs £92 per document (there are two types, covering property and financial affairs, and health and welfare) and is set up while the person involved chooses who they trust and what powers to give them.
- Applying to become a deputy involves a court application fee (currently £408), and typically a medical assessment of capacity, legal advice, and an annual supervision fee to the Office of the Public Guardian once appointed, plus ongoing annual reporting. Solicitors commonly cite total first-year costs somewhere in the region of £1,200 to £2,500, once all of this is accounted for, with several hundred pounds a year in ongoing costs after that.
Beyond cost, the process itself is slower and the outcome is less certain. A deputy is appointed by the court, not chosen freely by the family, and the court decides what powers to grant, which may be narrower than a family would have chosen for themselves. In the meantime, urgent decisions, about care, treatment or finances, may be delayed while the application is processed.
The two types of LPA
It's worth knowing there are two separate documents, and most people need to consider both:
- Property and financial affairs: covers bank accounts, bills, property and financial decisions. This can be used even before capacity is lost, if the person wants help managing things day to day.
- Health and welfare: covers decisions about medical treatment, care and daily welfare. This only comes into effect once capacity is lost.
What a little preparation looks like
Setting up an LPA while someone is well is a far calmer, cheaper and faster process than the alternative. It means choosing, in advance, who is trusted to act, and giving clear instructions about what matters to them. The Office of the Public Guardian also publishes guidance on spotting undue influence, worth being aware of, since an LPA should always reflect the wishes of the person making it, freely given.
Why this matters
Losing capacity, whether suddenly or gradually, is difficult enough for a family without also discovering that no one has the legal authority to help. An LPA, put in place in good time, means the right people are already able to act when they're needed most.
This is one of the core services I offer through An Ordered Life, as a Later Life Organiser, precisely because so many families only discover this gap exists once they're already standing in it.
This article is general guidance, not legal advice. An LPA is a legal document, and while it's possible to complete one without a solicitor, anyone with a complex family situation, or any doubt about capacity or undue influence, should seek professional legal advice before proceeding.
References
GOV.UK, LP9: What happens when I can no longer make decisions for myself?
GOV.UK, Become a deputy
GOV.UK, Make, register or end a lasting power of attorney
Canada Life, Four in five UK adults do not have a Lasting Power of Attorney
Alzheimer's Society, How many people have dementia in the UK?
