What happens if you lose mental capacity without a lasting power of attorney

Most people understand, in broad terms, what happens when someone dies. There is a will, an executor steps in, the estate is distributed. Far fewer people have thought about what happens when someone loses the mental capacity to make their own decisions but is still alive.

The honest answer is: without a lasting power of attorney already in place, your family is in for a hard, slow, expensive process. The myth that a spouse automatically takes over is one of the most damaging assumptions in estate planning.

The myth that a spouse can take over

Many couples assume that, because they share a bank account, raised a family, and have lived together for decades, the spouse can simply step in to manage things if one of them loses capacity. They cannot.

A spouse has no automatic legal authority to manage their partner's individual bank accounts, sell jointly owned property, or make decisions about their care. Joint accounts can sometimes be operated by one partner, depending on the bank's rules. Sole accounts cannot. The mortgage company will not accept a spouse's signature on a remortgage without the account holder's consent. The local authority will not accept a spouse's say-so on a care home placement without a legal route to authorise it.

The frozen-life scenario

Without an LPA, the practical consequences of lost capacity are immediate.

• Bank accounts in the sole name of the person who has lost capacity are typically frozen. The bills they used to pay (mortgage, utilities, insurance) continue to fall due.
• Investment platforms and pensions cannot be instructed by anyone else. Drawdown payments may stop.
• Property cannot be sold or remortgaged in the absence of legal authority for the donor's signature.
• Care home contracts cannot be signed on behalf of the person.
• Decisions about medical treatment fall to the treating doctors and next of kin under the Mental Capacity Act, but with no documented authority for the family to direct longer-term care.

Families discover this not in theory but on the day. A spouse trying to pay the mortgage from a frozen account, with no LPA in place, finds out at the worst possible moment that 'I am his wife' is not enough.

The Court of Protection

There is one alternative. The Court of Protection is the court that deals with people who lack capacity. Family members (typically) can apply to be appointed as a deputy, with authority to make decisions on the donor's behalf.

The process is real, it works, and many families end up using it. But it is the most expensive and time-consuming route to where an LPA would have got you in weeks.

How a deputyship works in practice

An application for a property and affairs deputyship typically takes six to nine months from start to grant. The court fees are several hundred pounds. The legal fees to prepare an application can run to a few thousand, particularly if it is contested or complex.

During the application, the family is in limbo. The applicant's solicitor can sometimes obtain an interim order for emergency expenditure, but that is not the same as a full deputyship.

Once appointed, a deputy has to:

• Provide a security bond (essentially insurance) before they can act
• File an annual report and accounts with the Office of the Public Guardian
• Pay an annual supervision fee (around £320 for general supervision, lower in smaller estates)
• Operate within the terms of the order, with anything outside it requiring a fresh application
• Justify decisions against the donor's known wishes and the Mental Capacity Act's best-interests test

It is workable, but it is intrusive in a way the donor never had to consent to.

Deputy vs attorney: the difference that matters

The most important difference between a court-appointed deputy and an attorney under an LPA is that the donor chose their attorney.

An LPA donor selects who acts on their behalf, names replacements if their first choice cannot act, includes restrictions or preferences if they want to, and signs the document while they have the capacity to do so. The arrangement is theirs.

A deputy is appointed by the court. The court tries to choose well, and usually does, but the donor has no say. Family members may end up disagreeing about who should act. In some cases the court refuses family applicants and appoints a professional deputy instead, at a higher cost to the donor's estate.

From the family's perspective, the deputy route is also far more supervised. The Office of the Public Guardian checks the accounts, queries unusual transactions, and, in serious cases, can remove a deputy and refer matters for investigation. None of this is wrong, but it means the family is doing the same job an attorney would have done, under far more scrutiny.

The capacity window

The thing every family should understand is that an LPA can only be made by someone with the mental capacity to make it. Once capacity is lost, the LPA route is closed. The donor must have capacity at the time they sign the document, and a certificate provider has to confirm it.

In practice, this is a window that closes faster than families expect. The early stages of dementia, a sudden stroke, or a serious illness can take capacity in days. A diagnosis of dementia does not automatically remove capacity, and many people with an early diagnosis can still make an LPA validly. But that window is often shorter than people realise once it starts to close.

The two LPAs (property and financial affairs, and health and welfare) cost £92 each to register with the Office of the Public Guardian. Both, for both partners in a couple, is around £368. Compared with the several thousand pounds and many months of a deputyship application, the contrast is not subtle.

When to act

The straightforward answer is: now, while you have the capacity to do it. There is no good reason to wait until you think you might need it. By the time you are sure, it is often too late. An LPA sits unused until it is needed, then it is invaluable.

Simply Estate is an estate planning firm. Our team can put both lasting powers of attorney in place properly, including registration with the Office of the Public Guardian. Visit our lasting power of attorney page to get started.