This guest blog was written by Aquabridge Law – a multi-disciplined law firm bringing together experts from a range of backgrounds to offer something different from the traditional model. Whether you need support with your business or personal matters, their team provides clear, practical advice tailored to your goals.
When we think about planning for the future, most of us understand the need for a will. But far fewer people realise that a Lasting Power of Attorney (LPA) is just as crucial, sometimes even more so.
So, what happens if you lose capacity and don’t have an LPA in place?
The reality if you lose capacity
Losing the ability to make decisions doesn’t just affect your health; it can also have serious financial and legal consequences.
Without an LPA, your loved ones may be unable toact on your behalf. They have no legal authority to access your bank accounts, manage your property, pay your bills, or make care decisions for you.
Instead, they must apply to the Court of Protection to be appointed as your deputy. This is:
- Time-consuming – Applications can take months to process, leaving crucial decisions in limbo.
- Costly – Court fees, solicitor costs, and annual reporting obligations add up quickly.
- Restrictive – Deputies must follow strict rules, submit reports to the court, and may need permission for major decisions.
- Not your choice – The court decides who is appointed. It may not be the person you trust most, or even someone you know well. Local authorities sometimes make applications to manage the finances of an incapacitated person if they are providing the care.
In the meantime, your assets may be frozen, care providers unpaid, and important health or financial matters left unresolved. Families often describe this process as overwhelming, especially during already stressful times.
Property and trust complications
Things become even more complicated when the person lacking capacity is a trustee with a beneficial interest in a property, for example, a co-owner of a family home held in trust.
In these cases, the remaining trustees cannot act unilaterally. An application must be made to the Court of Protection to appoint a replacement trustee, even just to sell or transfer the property.
This adds yet another layer of delay and legal cost.
Don’t overlook a health and welfare Lasting Power of Attorney
Many people mistakenly believe the health and welfare LPA is less important than the financial one, but that couldn’t be further from the truth.
When it comes to decisions about your medical treatment, daily routine, care arrangements, or even life-sustaining treatment, a health LPA ensures someone you trust is legally empowered to speak on your behalf.
Without it, decisions may fall to medical professionals or social services – people who may never have met you and who aren’t aware of your values, preferences, or family dynamics.
In some cases, families find themselves powerless to intervene, even in situations where they know what their loved one would have wanted.
This LPA gives your chosen person a voice in the most personal and potentially life-altering moments.
Joint attorneys: A common pitfall
Even when an LPA exists, how it is set up matters.
Many people appoint attorneys jointly, which means all attorneys must act together at all times. Unfortunately, if one attorney dies, loses capacity, or steps down, the LPA is no longer valid, unless replacement attorneys have been named.
This common mistake often leads to unintended consequences, such as needing a fresh application to the Court of Protection, which is something the LPA was meant to avoid.
The solution: Act now, with good advice
Creating an LPA gives you control over who will manage your affairs and ensures your wishes are respected. It’s a safeguard, not just for later life, but for any unexpected situation that might leave you unable to make your own decisions.
A will speaks after death. An LPA speaks when you can’t. Both are essential.
By taking a joined-up approach with professional advisors, you can ensure your documents are properly drafted, up to date, and legally robust. And should life throw a curveball, you’ll have a trusted team to work in partnership with you and your loved ones to navigate and resolve problems with clarity and confidence.
Get in touch
If you need to register or update an LPA, get in touch.
Email enquiries@aquabridgelaw.co.uk, or call us on 01394 330680 for our Felixstowe office or 01245 206345 for our Chelmsford office.
Please note
This article is for general information only and does not constitute advice. The information is aimed at retail clients only.
All information is correct at the time of writing and is subject to change in the future.
The Financial Conduct Authority does not regulate estate planning, trusts, Lasting Powers of Attorney, or will writing.