When someone close to you can no longer make decisions for themselves, it can be an overwhelming experience.
Not having a Lasting Power of Attorney (LPA) in place only makes the situation more difficult.
Many people mistakenly assume that family members or next of kin can step in to help with managing finances, arranging care, or making important health decisions, only to discover they are legally powerless to act without formal authority.
At Palmers Solicitors, our Wills and Probate team regularly supports families facing this very situation and have prepared some practical guidance on what you can do.
What does it mean to lose mental capacity?
Mental capacity refers to the ability to understand, process and communicate decisions.
Someone who has lost capacity may no longer be able to manage their finances, agree to medical treatment, or make decisions about their care or living arrangements.
Loss of mental capacity is often linked to conditions such as dementia, a stroke, or a severe brain injury and can happen gradually or all at once.
Why an LPA cannot be created after capacity is lost
A Lasting Power of Attorney can only be drafted while the person has full mental capacity. It must be signed and witnessed when they can understand the powers they are granting and the implications.
Once capacity is lost, they can no longer validly sign an LPA, and the opportunity to put one in place has passed.
What loved ones are unable to do without an LPA
Without a Lasting Power of Attorney (LPA) in place, even your closest family members have no legal right to make decisions on your behalf, no matter how good their intentions are.
They cannot:
- Access your bank accounts, even to pay your bills or care costs
- Sell, manage or even maintain your property
- Make decisions about your daily care or where you live
- Give or withhold consent to medical treatment
- Handle tax matters or claim benefits on your behalf
This legal barrier can place families in a very distressing and helpless position, particularly where urgent care decisions or financial matters are involved.
Without an LPA, loved ones must apply through the Court of Protection to be granted the authority to make these decisions on your behalf.
Applying to the Court of Protection
If someone has lost mental capacity and does not have an LPA in place, the only way to gain legal authority to make decisions for them is by applying to the Court of Protection.
The Court can appoint a deputy, usually a close family member, to act on their behalf.
The steps include:
- Choosing a deputy – The family should agree on who is best placed to take on this role. It is usually someone who has the best understanding of the individual’s values and wishes and is willing to abide by them.
- Preparing the application – The application process involves completing several court forms, including a full account of the person’s circumstances and the proposed deputy’s suitability. A formal capacity assessment from a medical professional is also required to determine the need for the order.
- Notifying others – The Court will require that certain family members and interested parties be informed of the application. This allows anyone with concerns to raise them before a final decision is made.
- Court decision and Deputy Bond – If the application is accepted, the Court will issue a deputyship order. The appointed deputy must then pay for a Deputy Bond, which is a type of insurance policy that protects the person lacking capacity from financial loss through any misuse of their funds.
The application process can take several months, or in some cases, more than a year. During that time, decisions may be delayed and access to funds restricted.
Deputies are also subject to closer supervision than attorneys. Unlike attorneys, a deputy must submit annual reports detailing all financial decisions and spending to the Office of the Public Guardian.
How Palmers Solicitors can help
At Palmers Solicitors, we provide expert legal guidance from the moment you realise help is needed. We can assist with preparing the application, obtaining capacity assessments, and ensuring all legal requirements are met.
Our team also advises on how best to carry out the deputyship role, giving families the reassurance they need to act confidently and lawfully on behalf of their loved one.
If you are concerned about a family member who has lost capacity without an LPA in place or would like to prepare an LPA before losing capacity, please get in touch.