What if I Don't Have an LPA?

Having a Lasting Power of Attorney (LPA) isn't compulsory. So what happens if you don't have one?

If you're well and have mental capacity, but don't have an LPA

Nothing changes day to day. You can manage your own money, make your own medical decisions, and generally get on with life as usual.

The risk is timing. Mental capacity can be lost suddenly, through a stroke, an accident, or a sudden illness, with no warning at all. An LPA can only be put in place while you do have capacity, so once that moment has passed, it's too late to put one in place.

Many people never lose mental capacity as they get older, but this cannot be guaranteed. Having an LPA in place means you are prepared for the future whatever it holds.

If you become physically unwell, but don't have an LPA, what happens?

People often assume that LPAs are only relevant in cases of lost mental capacity. However, if you become physically unwell, or simply less mobile and frailer as you get older, you may find it increasingly difficult to manage your own financial affairs. For example, hearing on the telephone, understanding technology as it modernises, dealing with your bank, paying bills, or handling correspondence with utility companies or HMRC can all become more difficult even when your mental capacity is entirely unaffected.

No one else has the automatic legal authority to act on your behalf in these circumstances, even a spouse, civil partner or "next of kin". This can mean that everyday tasks become unnecessarily difficult, or that you must give family members specific authority each time help is needed. Families may know each other's pin numbers or online banking login details, but this is not a safe way to plan for the long term.

A financial LPA put in place ahead of time can allow a trusted person to be able to act for you and speak for you as you get older however your mental and physical health develops. It can be there ready to be used if you become physically unwell, if you lose mental capacity, or even just when you are on holiday for convenience.

If you lose mental capacity, but don't have an LPA, what happens?

This is where the lack of an LPA can really cause problems, and it affects money and health in different ways.

Money and property

No one (not even a spouse, civil partner, adult child or other "next of kin") has the legal right to access your bank accounts, pay your bills, or manage your property just because they're related to you. Banks and other institutions generally won't act on a family member's instructions without proper legal authority. This can mean bills going unpaid, ISAs and pensions frozen, or a property sale grinding to a halt at exactly the time your family needs to move quickly. Even accounts that you own jointly with a spouse or civil partner can be frozen if one party loses mental capacity. If you need care, without a financial LPA in place, your family won't have the authority to use your money to pay for that care. Things can become very difficult very quickly.

When faced with this horrible situation, the only thing your family can do is to apply to the Court of Protection to be appointed as your "Deputy". Once they are appointed as your Deputy, they can then manage your money but only with strict Court of Protection oversight. The whole process, from the original application for Deputyship to the ongoing management of your finances under the terms of the Deputyship order, is likely to be expensive and time consuming. Although it can be the most suitable option if you prefer the security of Court of Protection involvement in the management of your finances, for many people it adds unnecessary legal complexity and expense.

Health and welfare decisions

Doctors and clinicians may keep your "next of kin" informed about your medical treatment, but your next of kin, whether that be your spouse, civil partner or adult child, have no right to make medical decisions on your behalf. Instead, if you do not have mental capacity to express your own views, doctors make decisions in your "best interests". As part of making their decisions, clinicians typically consult family and anyone else close to you, but legally, the final say rests with the medical professionals, not your relatives.

Again, if your family are unhappy with decisions being made about your care, the only option would be to apply to the Court of Protection to be your Deputy.

So what should you do and when?

Setting up a financial and/or medical LPA means the person you trust and appoint as your "Attorney" can speak for you and make decisions for you as and when needed in the future.

It is key to set up the LPA before it is needed and, crucially, before you lose mental capacity. It is common for LPAs to be set up and then put away and forgotten about for many years and only brought out to be used when a person gets older or becomes unwell. LPAs can be signed and registered, lying dormant but still valid, ready to be used if and when circumstances require it.

People often assume LPAs are something only older people need to think about. But nobody gets advance warning of a sudden accident or illness, and so setting up an LPA while you have capacity is always worth considering.

If you set up a financial LPA, your chosen Attorney will be able to, amongst other things, pay your bills, manage your pension and speak on your behalf with utilities and HMRC. The LPA is very powerful and can be extremely useful if more significant financial transactions are needed, such as investing money on your behalf or even allowing your Attorney to sell your house to pay for your care. But if you prefer, you can also limit the power you give to your Attorney. Our system guides you through a set of questions designed to ensure you have an LPA you are happy with.

If you set up a health and welfare LPA your chosen Attorney would be able to speak for you when you can no longer speak for yourself. The Attorney can consent to treatment, discuss your medication and prescriptions, consent to operations, decide where you should live and even refuse life sustaining treatment at the end of your life (if that is what you want). The medical LPA can be drafted so that your wishes are clear, and your chosen trusted Attorney can follow those wishes right up to the end of your life.

What it comes down to

Both the financial and medical LPAs are important documents, that are part of sensible life planning. If you're well and have capacity, that's exactly the window in which to arrange one. Not so control shifts to someone else now, but so the right person is ready to step in smoothly if it's ever needed, without your family having to turn to the Court of Protection to get there.

Our guide on how to make an LPA takes you through the steps in order. Our pricing page sets out the cost of one LPA or both, and a solicitor on our team checks every LPA before you sign it.

This article is for general information and is not legal advice. If someone close to you has already lost mental capacity, or you are unsure what powers to give your Attorneys, please get in touch for advice on your own situation.

Sources

• Section 9 of the Mental Capacity Act 2005 on legislation.gov.uk. An LPA can only be made by a donor who is 18 or over and "had capacity to execute it". This is why an LPA cannot be put in place once capacity has been lost.
• Section 16 of the Mental Capacity Act 2005 on legislation.gov.uk. Where someone lacks capacity, the Court of Protection may make the decision itself or "appoint a person (a "deputy") to make decisions on P's behalf".
• Section 1 of the Mental Capacity Act 2005 on legislation.gov.uk. Anything done for a person who lacks capacity "must be done, or made, in his best interests". Section 4 sets out how best interests are worked out, including the duty to consult anyone engaged in caring for the person.
• Section 11 of the Mental Capacity Act 2005 on legislation.gov.uk. A health and welfare attorney can only give or refuse consent to life-sustaining treatment where "the instrument contains express provision to that effect".
• Make decisions on behalf of someone on GOV.UK. Sets out the two routes to legal authority: a power of attorney given while the person has capacity, or appointment as a Court of Protection deputy. Family relationship alone is not one of them.
• Deputy fees on GOV.UK. Applying to be a deputy costs £432, with a £100 assessment fee for a new deputy and £100 for a court hearing if one is needed. Supervision then costs £320 a year for general supervision, or £35 for minimal supervision. A security bond may also be required.