Thinking about what might happen if you lost the ability to make decisions for yourself isn’t something most of us do willingly. It’s the kind of planning many people put off until it feels more urgent. But for families already supporting a loved one through dementia, a serious illness, or a sudden medical crisis, that question becomes very real, very quickly.
Whether you’re considering your own future or trying to support a family member who has lost mental capacity, the absence of a Lasting Power of Attorney (LPA) can make an already difficult situation far more complicated than most people expect.
| What Does “Losing Mental Capacity” Mean?
Under the Mental Capacity Act 2005 (MCA), a person lacks mental capacity if they are unable to understand, retain, or use information to make a decision, or communicate that decision. Importantly, capacity is decision-specific: a person may be capable of deciding what to eat but not of managing a property or consenting to a complex medical procedure.
A mental capacity assessment is usually carried out by a healthcare professional, such as a GP or consultant. The MCA also presumes that a person has capacity unless it can be shown otherwise.
| The Role of a Lasting Power of Attorney (LPA)
A Lasting Power of Attorney is a legal document that lets you appoint someone you trust (known as an attorney) to make decisions on your behalf if you lose capacity. There are two types:
- Property and Financial Affairs LPA: Covers bank accounts, bills, investments, and property sales. It can be used while you still have capacity, if you wish.
- Health and Welfare LPA: Covers medical treatment, care arrangements, and decisions about where you live. This type can only be used once you’ve lost capacity.
The critical point is that an LPA must be created while the donor (the person making the LPA) still has capacity to understand what they’re signing. Once capacity is lost, it’s too late to create an LPA and an alternative approach needs to be taken.
| What Happens if You Lose Capacity Without an LPA?
Without an LPA, no one automatically has legal authority to step in. This creates an immediate practical crisis:
- Banks will freeze sole accounts and won’t accept instructions from family members.
- Ongoing bills, care fees, and mortgage payments can fall into arrears.
- Property cannot be sold or transferred without court authorisation.
- Medical teams cannot be directed by family on treatment preferences.
The only route forward is to apply to the Court of Protection for formal legal authority. This takes time and costs money, both of which can be in short supply during a family crisis.
| Who Makes Decisions if There is No LPA?
In the absence of an LPA, decision-making authority does not simply pass to the next of kin. “Next of kin” carries no legal weight in England and Wales when it comes to financial or medical decisions.
For medical decisions, the NHS, care providers and the local authority must act in the person’s “best interests” under the MCA, consulting family members but with no legal obligation to follow their wishes. For financial matters, banks will not take instructions from family without a deputyship order or other court authority.
| Applying to the Court of Protection for a Deputyship Order
A deputyship order (a formal court order appointing a deputy to act on behalf of someone who has lost capacity) is the main alternative to an LPA. To apply, you’ll need to:
- Complete the relevant Court of Protection application forms.
- Provide a capacity assessment from a medical professional.
- Notify the person who has lost capacity and certain family members.
- Pay the court application fee.
- Await the court’s decision, which may include a hearing.
Once appointed, a deputy must act in the person’s best interests and comply with the MCA’s principles at all times.
| Property and Financial Affairs Deputy vs Personal Welfare Deputy
There are two types of deputyship, mirroring the two types of LPA:
- Property and Financial Affairs deputy: The most common type, covering bank accounts, benefits, and property.
- Personal Welfare deputy: Covers care, treatment, and living arrangements.
The Court of Protection rarely grants welfare deputyships. In most cases, medical and care teams manage welfare decisions under their best interests duty. A welfare deputyship is usually only considered where there is an ongoing or complex dispute.
| How Long Does a Deputyship Application Take and What Does it Cost?
Deputyship applications aren’t quick. In our experience, the process typically takes between six months and a year, sometimes longer. The costs involved include:
- A court application fee
- Solicitor’s fees for preparing and submitting the application
- An annual supervision fee payable to the OPG
- A security bond (an insurance policy protecting the person whose affairs are being managed)
- Ongoing annual reporting obligations to the OPG
These costs recur for as long as the deputyship is active, making it significantly more expensive over time than putting an LPA in place early.
| Deputyship vs LPA: Key Differences
| LPA | Deputyship | |
| When it’s created | In advance, while capacity exists | After capacity is lost |
| Who decides | You choose your attorney | The court appoints a deputy |
| Time to set up | Around 8 to 10 weeks | Six months to a year or longer |
| Ongoing oversight | Lower | Higher, with annual OPG reporting |
| Cost | Fixed, one-off fee | Ongoing application and supervision costs |
An LPA prepared early gives you control. A deputyship is a safety net, but a costly and slow one.
| Emergency Situations: Urgent Court of Protection Orders
Where a decision can’t wait, the Court of Protection can make urgent or interim orders (temporary orders made before a full hearing). These might cover urgent medical treatment, release of funds for immediate care fees, or prevention of financial abuse. Emergency applications are possible, but they’re stressful and not guaranteed to move quickly.
| Can You Still Set Up an LPA After a Diagnosis?
A dementia diagnosis doesn’t automatically mean that someone lacks the capacity to make an LPA. Because capacity is decision-specific, a person may still understand the nature and effect of signing an LPA even if other aspects of their cognition have been affected.
If someone close to you has recently received a diagnosis, it’s important to act quickly. A solicitor can help arrange a capacity assessment and, if capacity is confirmed, get an LPA in place before the window closes. Our wills, probate and estate planning team can advise you on whether this is still possible.
| Frequently Asked Questions About Losing Mental Capacity Without an LPA
| Can My Family Access My Bank Account if I Lose Mental Capacity Without an LPA?
No. Banks will freeze sole accounts and won’t accept instructions from family members without legal authority. A deputyship order from the Court of Protection is usually required.
| Who Makes Medical Decisions if I Have no LPA for Health and Welfare?
Doctors, care providers and the local authority must act in your “best interests” under the Mental Capacity Act 2005, consulting your family but with no legal obligation to follow their wishes.
| Is a Next of Kin Automatically Allowed to Make Decisions in the UK?
No. “Next of kin” has no legal authority over financial or medical decisions in England and Wales. An LPA or deputyship order is required.
| How Long Does it Take to Get a Deputyship Order?
Typically between six months and a year, sometimes longer. In urgent situations, the Court of Protection can make interim orders, though these aren’t guaranteed to move quickly.
| Can I Get an LPA for Someone Who Already Has Dementia?
Possibly. Because capacity is decision-specific, a person with dementia may still have sufficient capacity to sign an LPA if they understand what they’re agreeing to. Act quickly and seek legal advice as soon as possible.
| What is the Difference Between a Deputyship and an LPA?
An LPA is a document you create in advance, choosing who acts for you. A deputyship is imposed by the court after capacity is lost. Deputyships take longer, cost more, and come with greater ongoing reporting requirements.
| Can I Be Both a Financial and Welfare Deputy?
Yes. However, personal welfare deputyships are rarely granted and are usually only considered where there is an ongoing or complex welfare dispute.
| How Levi Solicitors Can Help
Our wills, trusts and probate solicitors have extensive experience helping individuals and families with both LPA preparation and Court of Protection applications. Our team includes STEP-accredited solicitors who are all trained Dementia Friends, and we understand how difficult these situations can be.
Wherever possible, we’ll help you avoid the cost and delay of court proceedings by putting protective documents in place early. If capacity has already been lost without an LPA, we’ll guide you through the deputyship process with care and clarity. We can also help you prepare a will alongside your LPA to ensure your wider wishes are properly recorded.
Call us today on 0800 988 7756 or book an appointment online. Straightforward advice that you can rely on, from our offices in Leeds, Moortown and London.
