If you don’t have Power of Attorney in place and you lose mental capacity, the situation can quickly become far more complicated than most people expect.
Discover everything you need to know about what happens if you don’t have power of attorney:
One of the most common assumptions we come across at Heritage Estate Planning is the idea that “if something happens to me, my spouse or family will just be able to step in and sort things out.”
It sounds logical, and in many ways it feels like it should be true. But in reality, that’s not how the law works. If you don’t have a Lasting Power of Attorney (LPA) in place and you lose mental capacity, the situation can quickly become far more complicated than most people expect. In some cases, it can leave families feeling powerless at exactly the moment they’re trying to help the most.
If you’re looking to preserve your future wishes and want to understand the consequences of not having the right measures in place, today I’ll be covering what happens if you don’t have a Lasting Power of Attorney.
Let’s start with one of the biggest misconceptions – many people believe that their next of kin (usually a spouse, partner, or adult child) automatically has the authority to make decisions on their behalf.
Unfortunately, that simply isn’t the case. Once you reach adulthood – at 18 – you are legally responsible for your own decisions. That principle doesn’t change just because you become unwell or lose mental capacity. If you haven’t formally appointed someone to act for you through an LPA, no one has automatic authority to step in for you – that includes your spouse.
This can come as a real shock to families, particularly during already stressful or emotional situations.
When someone loses mental capacity without a Power of Attorney in place, there isn’t an immediate, single event that happens. Instead, day-to-day life tends to slowly grind to a halt, and that’s where the problems begin.
One of the first issues we often see is related to finances. If bank accounts, savings or investments are held in one person’s name, those accounts can effectively become frozen. This means:
Even in a marriage or long-term relationship, this can create real difficulties. While joint accounts can usually continue to operate, many people now manage their finances separately, which leaves a gap when one person can no longer manage their own affairs.
If the person runs a business, the situation can become even more serious. We’ve seen cases where business accounts are frozen, making it difficult to pay staff, suppliers, or to simply keep things running day-to-day.
Financial challenges are one side of the story – the often more emotional side is health and welfare. Without a Health and Welfare LPA, decisions about medical care, treatment, and living arrangements are not made by your family. Instead, they are made by professionals, typically involving:
Families may sometimes be consulted, but they do not have final say. We’ve supported clients where decisions about care – such as where someone should live – have been made in ways that don’t work for the family. For example, a care placement might be chosen that is a long distance away, making it difficult for a spouse or children to visit regularly.
You can imagine how upsetting that can be, especially when those closest to the person feel they know what would have been wanted.
When there is no Power of Attorney in place, the only way for someone to gain legal authority is by applying to become a deputy through the Court of Protection. On paper, it may sound like a solution, but in reality, it comes with several challenges.
First, it can take a considerable amount of time. In many cases, families are waiting months for an application to be processed. During that time, decisions can be delayed, and access to finances remain restricted. Second, it can be costly. There are court fees, potential legal fees, and ongoing costs associated with managing the deputyship. Lastly, it’s far more restrictive than an LPA.
The court will usually grant deputyship for financial matters, but it is much less common for health and welfare decisions. That means those personal decisions may still sit with professionals, rather than family.
There are also ongoing responsibilities associated. Deputies must:
All of this is designed to protect the individual, but it does add a significant administrative burden for the person trying to help. This is an extra layer of complexity that could have been avoided with forward planning.
One of the hardest aspects of this situation is that by the time people realise the importance of an LPA, it’s often too late. You can appoint someone whilst you still have mental capacity.
We’ve had conversations with families following a diagnosis of advanced dementia, where social services are already involved and mental capacity has declined to the point where an LPA can no longer be created. At this stage, the Court of Protection is the only route available.
This is why we always emphasise the importance of putting a Lasting Power of Attorney in place early – before there are any concerns about capacity, and while you still have full control over your decisions. Not having an LPA in place doesn’t just create inconvenience, it can fundamentally change who is able to make decisions about your life.
At Heritage Estate Planning, we see both sides every day. We see the challenges families face when nothing is in place, and we see the relief and clarity that comes when it is. If there’s one key takeaway from this article, it’s that an LPA isn’t just about planning for the future, it’s about protecting the people around you from unnecessary stress and difficulty.
If you’re ready to discuss putting a Lasting Power of Attorney in place, get in touch today with our friendly team today.
Ally Covers More on YouTube:
Let us take care of it, and book a free consultation with our Berkshire or Kent office.
We would love to speak to you if you have been looking for a trusted provider of wills and financial planning.
