What Happens If You Don't Have a Lasting Power of Attorney? Understanding the Court of Protection
Most of us assume that if something happened to us, our husband, wife, partner or adult children would automatically be able to step in and help.
It's one of the biggest misunderstandings I come across.
The reality is that, without a Lasting Power of Attorney (LPA), your loved ones don't automatically have the legal authority to manage your finances or make important decisions about your health and welfare if you lose mental capacity.
Instead, they may have to apply to the Court of Protection to become your Deputy – a process that is generally more expensive, more time-consuming and far more restrictive than putting LPAs in place while you still have capacity.
It's not something any of us like to think about, but planning ahead can save your family a great deal of stress at an already difficult time.
What Is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document that allows you to appoint one or more people you trust to make decisions on your behalf if you're ever unable to make those decisions yourself.
There are two types of LPA:
Property and Financial Affairs LPA
This allows your attorney to deal with matters such as:
Paying bills.
Managing bank accounts.
Dealing with pensions and investments.
Buying or selling property if necessary.
Handling day-to-day finances.
Health and Welfare LPA
This allows your attorney to make decisions about:
Medical treatment.
Care arrangements.
Where you live.
Daily care.
Life-sustaining treatment (if you choose to give them that authority).
Making an LPA doesn't mean giving up control. As long as you have mental capacity, you continue making your own decisions.
What Happens If You Don't Have an LPA?
If you lose mental capacity without an LPA in place, your family cannot simply start acting on your behalf.
Many people are surprised by this.
Being married doesn't automatically allow your spouse to access your bank accounts or deal with finances that are solely in your name.
Likewise, your adult children cannot simply sign documents or make financial decisions for you because they are your next of kin.
Depending on your circumstances, your loved ones may be unable to:
Access accounts in your sole name.
Manage investments.
Sell your property.
Deal with pensions.
Pay certain bills.
Manage other financial affairs.
If decisions need to be made and no LPA exists, someone will usually need to apply to the Court of Protection.
What Is the Court of Protection?
The Court of Protection exists to protect people who no longer have the mental capacity to make certain decisions for themselves.
If no Lasting Power of Attorney has been made, the Court decides who should be appointed as a Deputy.
In many cases this will be a close family member, but there is no automatic entitlement. The Court must be satisfied that the person applying is suitable.
If there are disagreements within the family or nobody is able to act, the Court can appoint a professional Deputy instead.
Deputyship is an important safeguard, but it is generally more complex than having an LPA already in place.
A Real-Life Example
Imagine this.
Your husband suffers a serious stroke.
He survives, but no longer has the mental capacity to manage his finances.
His pension is paid into a bank account in his sole name.
The mortgage still needs paying.
Utility bills continue to arrive.
Care fees need to be arranged.
You naturally assume you'll be able to deal with everything because you're married.
Unfortunately, that's not always the case.
Without an LPA, you may first need authority from the Court of Protection before you can deal with certain aspects of his financial affairs.
While you're waiting for that authority, life doesn't stop.
The bills still arrive.
The paperwork keeps growing.
You're coping with your loved one's illness while trying to navigate an unfamiliar legal process at the same time.
It's a situation no family wants to face.
Lasting Power of Attorney vs Court of Protection
Lasting Power of AttorneyCourt of Protection DeputyshipYou choose who acts for youThe Court appoints a DeputyMade while you have mental capacityApplied for after capacity has been lostOne-off registrationOngoing supervision and reportingUsually ready when neededApplications can take many monthsYou remain in control of your choicesGreater Court involvement
Is Deputyship More Expensive?
Generally, yes.
Making LPAs involves a one-off cost together with the Office of the Public Guardian registration fee.
Deputyship applications usually involve:
A Court application fee.
Medical evidence.
Possible legal costs if professional advice is needed.
Ongoing supervision fees.
Annual reporting requirements.
In some cases, security bond costs.
Every situation is different, but Deputyship is often significantly more expensive than making LPAs in advance.
It's Not Just About Money
Although people often focus on the financial side, an LPA is about much more than protecting your bank account.
It's about making sure the people you trust can help if they're needed.
That could include decisions about:
Where you live.
Your care.
Medical treatment.
Daily routines.
Speaking to professionals on your behalf.
Without an appropriate LPA, these decisions can become much more complicated.
Common Myths About LPAs
"My husband can deal with everything."
Not automatically.
Marriage does not give someone legal authority to manage finances or make decisions simply because their spouse has lost mental capacity.
"My children will sort it out."
Only if they have the legal authority to do so.
Without an LPA, they may need to apply to the Court of Protection.
"I'm too young to need one."
LPAs aren't just for older people.
Accidents, serious illness and unexpected medical conditions can affect adults of any age.
Many of my younger clients choose to put LPAs in place simply because they want to be prepared.
"I'll do it later."
This is probably the most common thing I hear.
The difficulty is that an LPA can only be made while you still have the mental capacity to understand and sign it.
If that opportunity has passed, it's too late.
Why Planning Ahead Matters
Making LPAs is one of those jobs that's easy to put off.
Hopefully they'll never be needed.
But if they are, having them in place can save your loved ones months of uncertainty, additional expense and unnecessary stress.
It also means you decide who will help you.
Not the Court.
How I Can Help
At South West Wills & Estate Planning, I prepare Lasting Powers of Attorney for individuals and couples across Cornwall and North Devon, with secure online appointments available throughout England and Wales.
I'll explain everything in plain English, answer your questions and guide you through the process from start to finish.
As a full Member of the Society of Will Writers, I'm fully insured and DBS checked, giving you confidence that your LPAs are being prepared professionally and with care.
Whether you're making LPAs for the first time or simply want to understand how they work, I'm always happy to have a friendly, no-obligation chat.
Frequently Asked Questions
Can my spouse automatically access my bank account?
Not necessarily.
If an account is in your sole name, your spouse may not have the legal authority to manage it simply because you're married.
Can my children make medical decisions for me?
Not automatically.
Healthcare professionals will always act in your best interests, but a Health and Welfare LPA allows you to choose who you want involved in those decisions if you lose mental capacity.
Can I change my LPA later?
Yes.
As long as you still have mental capacity, you can cancel an existing LPA and make a new one if your circumstances change.
Planning Ahead Gives Peace of Mind
Nobody likes to think about losing mental capacity.
However, making Lasting Powers of Attorney is one of the simplest ways to protect yourself and the people you love.
It's about making sure your wishes are respected, your finances can be managed if necessary and the people you trust have the legal authority to help when it matters most.
A friendly conversation today could save your family a great deal of stress in the future.