What Happens If You Don't Have A Lasting Power Of Attorney?

sarah ryan
Sarah RyanAccount Manager @ Lawhive & Non-Practising Solicitor
Updated on 16th May 2024

It's a common misconception that a Lasting Power of Attorney is just for elderly people.

As such less than 1% of the adult UK population has an LPA in place, according to statistics from the Office of the Public Guardian, mostly because they don't think they'll lose capacity, don't care, or simply don't want to tempt fate.

But in reality, setting up an LPA is a good idea for everyone over the age of while they have mental capacity. I would go as far as to say that having an LPA is just as important as making a will.

Just for a moment imagine how your loved ones would cope if:

  • You were in an accident?

  • Couldn't manage your financial affairs?

  • Couldn't make decisions about your health and welfare?

A lasting power of attorney gives someone you trust the authority to make decisions for you if you can't. There are two types of LPA:

  1. Property and Financial Affairs

  2. Personal Welfare

Why is it so important to set up an LPA?

Reducing stress on your loved ones

While it's not fun to think about, having a Lasting Power of Attorney can help ease worries for your loved ones if you can't manage your affairs or make decisions for yourself.

Should something happen, you will already have someone in place who is aware of their appointment as your LPA and prepared to take on the responsibility of making decisions in your best interests.

By having an LPA, your family can skip the long, hard, and expensive process of petitioning the Court of Protection to appoint a Deputy.

Again, this means someone can step in quickly to make important decisions if you can't, whether it's for a short period, a prolonged amount of time, or indefinitely.

Dealing with Dementia

In England, around 676,000 individuals are living with dementia, with a total of 850,000 across the UK. While dementia predominantly affects older adults, it can be diagnosed earlier.

Dementia is a progressive illness and, as such, individuals may lose the ability to make certain decisions for themselves (known as lacking 'mental capacity.)

If this happens, a Lasting Power of Attorney can step in to make decisions on their behalf, ensuring their wishes are upheld even when they are no longer able to express themselves.

However, without an LPA in place, no one has the authority to do this, not even your spouse or children unless they ask the Court of Protection to appoint someone to make decisions on your behalf.

Mitigating money troubles

Without an LPA, couples may encounter challenges in managing financial matters if one partner falls seriously ill.

Newsreader and TV personality Kate Garraway's experience highlighted the difficulties faced in accessing funds and managing medical records without an LPA when her husband, Derek, became seriously ill and she was unable to access the funds needed to remortgage their house.

Without an LPA in place, couples (whether married, in a civil partnership, or cohabiting) may struggle to manage each other's affairs effectively during times of illness or crisis.

What happens if you don't set up a lasting power of attorney?

Many couples wrongly believe that their spouse or civil partner automatically has the authority to manage their health, property, or finances if they become incapacitated.

However, this is not the case unless there is a Lasting Power of Attorney in place.

Court intervention

In the absence of an LPA, the Court of Protection must appoint someone as a Deputy to make decisions on behalf of the incapacitated individual.

As you might expect, this formal legal process is time-consuming, emotionally difficult, and comes with lots of costs.

Loss of decision-making control

If you don't have an LPA and you are lacking in the capacity to make your own decisions, it's too late to choose who gets to make decisions on your behalf.

Sometimes, if there's a one-off decision to be made and you do not have the capacity, the Court of Protection may decide on your behalf instead of appointing a deputy to do so for you. Other times, they may appoint a Deputy if a series of decisions need to be made or the requirement looks to be more long-term.

That means even if you have expressed your wishes informally to family members or loved ones about things like what should happen to your property, money, or other assets, or views on how you should be treated or cared for if you are ill, your wishes may not be reflected in the decisions made on your behalf if the court appoints a Deputy to make them for you.

Potential family conflicts and disputes

In situations where individuals have expressed their wishes informally to loved ones but the court appoints someone else, it can lead to disagreements among family members.

Lack of alignment in these matters, especially between expressed wishes and court-appointed decisions, may cause tension and conflict within families.

Should I set up an LPA?

Ultimately, the decision to set up a Lasting Power of Attorney rests with you. However, it's essential to understand the potential implications of not having one in place.

Loss of capacity can happen unexpectedly at any age due to various factors such as accidents, health conditions, or degenerative diseases like Alzheimer's. Therefore, it's undoubtedly a good idea for anyone over the age of 18 to consider setting up both a Health and Welfare LPA and a Property and Financial Affairs LPA.

By doing so, you can be sure your wishes and preferences, especially concerning medical treatment, care, where you live, and your finances are legally represented if you become incapacitated.

Furthermore, since it's impossible to predict when or how mental capacity may be lost, setting up an LPA sooner rather than later helps mitigate the risk of disputes arising among your loved ones regarding decision-making.

How can Lawhive help?

Don't fall into the trap of thinking that Lasting Powers of Attorney (LPAs) are only for the elderly or the sick. The truth is, that having an LPA is important for everyone, regardless of age. Why not make sure you're not left vulnerable in times of need?

At Lawhive, we understand the importance of planning for the unexpected. That's why we're here to guide you through the process of setting up your LPA. Our network of experienced wills, trust, and probate solicitors will make sure your wishes are legally represented, giving you peace of mind knowing that your affairs will be handled according to your preferences.

In working with us you get:

  1. Expert guidance through the entire process, ensuring that your Lasting Power of Attorney is set up correctly and tailored to your specific needs;

  2. Simple and efficient process, all carried out online through our user-friendly online platform.

Ready to get started? Contact us now to schedule a free case evaluation with our legal assessment team.

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