A Lasting Power of Attorney (LPA) is a legal document that allows an individual to appoint one or more people to make decisions on their behalf if they lose the ability to do so themselves. In England and Wales, LPAs are commonly used to plan for situations involving illness, injury or loss of mental capacity.
Where no LPA is in place, families can encounter practical and legal difficulties when trying to manage a loved one’s affairs. These issues often arise at a time when decisions need to be made quickly, and the absence of legal authority can cause delay and uncertainty.
What Is a Lasting Power of Attorney?
An LPA allows a person (the “donor”) to appoint one or more attorneys to make decisions on their behalf. There are two types of LPA in England and Wales:
- Property and Financial Affairs LPA
- Health and Welfare LPA
A Property and Financial Affairs LPA can allow attorneys to manage bank accounts, pay bills, or deal with property matters. A Health and Welfare LPA can allow decisions about medical treatment, care and living arrangements, but only if the donor lacks capacity.
What Happens If There Is No LPA?
If a person loses mental capacity without an LPA in place, family members do not automatically have the legal authority to make decisions on their behalf. This can lead to a number of difficulties in practice.
In such cases, it may be necessary to apply to the Court of Protection for a deputyship order. This process can take time and involves ongoing supervision and reporting requirements.
Common Problems Families Encounter Without an LPA
1. The Need for a Court of Protection Application
Where no LPA exists, families may need to apply to the Court of Protection to be appointed as a deputy. This is a formal legal process which involves:
- submitting an application to the court
- providing medical evidence of lack of capacity
- waiting for the court to make a decision
This process can take several months, during which time decisions may be delayed or limited.
2. Delays in Accessing Finances
Without a Property and Financial Affairs LPA, banks and financial institutions will not usually allow family members to access or manage accounts. This can make it difficult to pay bills, manage mortgages or deal with day-to-day financial matters.
In some cases, accounts may effectively be frozen until a deputyship order is obtained.
3. Difficulties Selling or Managing Property
Property-related issues can become particularly complex without an LPA.
If a property is owned jointly and one owner loses mental capacity, the property cannot usually be sold or transferred without legal authority to act on behalf of that person. This means that even where there is a clear need to move—for example, to downsize, relocate closer to family, or fund care—this may not be possible without first obtaining a deputyship order from the Court of Protection.
Similarly, decisions about remortgaging, dealing with equity, or managing a buy-to-let property may be delayed until authority is granted.
4. Problems Managing Everyday Financial Affairs
Beyond larger decisions, even routine financial management can become difficult. This may include:
- dealing with pension providers
- managing investments
- handling tax matters
- responding to correspondence from financial institutions
Without formal authority, organisations will generally not take instructions from family members, even where they are closely involved.
5. Difficulty Making Decisions About Care
Without a Health and Welfare LPA, decisions about medical treatment or care arrangements are generally made by healthcare professionals in consultation with family members. However, family members do not have final decision-making authority.
This can lead to uncertainty, particularly where there are differing views about what is in the individual’s best interests.
6. Ongoing Responsibilities and Oversight
If a deputy is appointed, they are subject to ongoing supervision by the Office of the Public Guardian. This can include reporting requirements and, in some cases, the need to obtain permission for certain decisions.
This is different from an LPA, where the donor has chosen their attorneys in advance and the arrangement is generally more straightforward to operate.
Why These Issues Often Arise at Difficult Times
Problems relating to the absence of an LPA often arise suddenly, for example following illness or injury. At that point, families may need to deal with practical matters such as finances, care arrangements or property issues.
Without legal authority in place, even routine decisions can become more complex. This can add additional pressure at an already difficult time.
The Legal Position in England and Wales
The framework for LPAs is set out in the Mental Capacity Act 2005. This legislation establishes how decisions can be made on behalf of individuals who lack capacity, including the role of attorneys and deputies.
Where no LPA exists, the Court of Protection has the authority to appoint a deputy to make decisions. However, this is generally a more formal and time-consuming process than relying on an LPA.
Conclusion – The Importance of a Lasting Power of Attorney
The absence of a Lasting Power of Attorney can lead to practical and legal challenges for families when a person loses the ability to make decisions for themselves. These issues often involve delays, additional processes and uncertainty around decision-making.
LPAs provide a mechanism for decisions to be managed more smoothly, but where they are not in place, the legal framework in England and Wales requires formal steps to be taken before authority can be established.
Read our previous article for related information: Protecting Your Future: Why You Should Set Up a Lasting Power of Attorney.
Lasting Power of Attorney Solicitors
With offices in Blackpool and Thornton-Cleveleys, MJV Solicitors provides professional LPA services throughout the Fylde Coast. We regularly assist clients based in Fleetwood, Thornton-Cleveleys, Bispham, Blackpool, Poulton-le-Fylde, Lytham St Annes and the surrounding areas.
MJV Solicitors is authorised and regulated by the Solicitors Regulation Authority. Our team prepares Lasting Powers of Attorney in accordance with the law of England and Wales. When drafting LPAs for our clients, we explain matters clearly, record instructions accurately, and ensure documents are properly executed and registered.
If you would like clear, professional advice about setting up an LPA, contact our experienced private client solicitors in Blackpool and the Fylde Coast today.
Complete our enquiry form or contact us by calling 01253 858231 or emailing us at info@mjvlaw.co.uk
Frequently Asked Questions
What is the difference between an LPA and deputyship?
An LPA is made by an individual while they have capacity, appointing attorneys to act on their behalf. Deputyship is granted by the Court of Protection after a person has lost capacity.
Can family members make decisions without an LPA?
Family members may be consulted, particularly in health and care decisions, but they do not automatically have legal authority to make decisions without an LPA or court appointment.
How long does it take to get deputyship?
Applications to the Court of Protection can take several months, depending on the circumstances and the complexity of the application.
Can bank accounts be accessed without an LPA?
Banks will usually require legal authority, such as an LPA or deputyship order, before allowing someone to manage another person’s finances.
Is an LPA only for older people?
LPAs can be made by any adult with capacity. They are not limited to a particular age group.
For more Frequently Asked Questions about LPAs, please visit our Lasting Power of Attorney service page.
