What Happens if you lose Mental Capacity without an LPA?
None of us like to think about losing mental capacity. But injuries, strokes and illnesses like dementia can impact our ability to make decisions at any time. Being mentally incapacitated with no measures in place can make you vulnerable. So, what safeguards exist for if you ever lost capacity without establishing a Lasting Power of Attorney (LPA)?
An LPA lets you appoint a chosen attorney to manage your affairs if needed. Without one, hurdles arise for your family to gain authority to act for you.
Read through our guidance on what happens if you lose mental capacity without an LPA in place.
Table of Contents
Defining Mental Capacity
Mental capacity refers to the ability to make independent, informed decisions about your own welfare, healthcare treatments or financial affairs. Under the Mental Capacity Act 2005 covering England and Wales, individuals are assumed to have mental capacity unless proven otherwise.
To have mental capacity you must be able to:
- Understand the decision’s nature and consequences.
- Retain, use and weigh up relevant information to inform the decision.
- Communicate the decision in any way.
Mental capacity depends on the type of decision being made and can fluctuate over time. But if deemed to lack mental capacity for significant decisions, legal safeguards must protect you.
Why Plan Ahead with an LPA
A Lasting Power of Attorney appoints one or more attorneys to manage your affairs if you ever lost capacity through an accident, illness or condition like dementia.
There are two types to cover different needs:
Health and Welfare LPA – gives attorneys authority to make decisions about medical care, housing or daily routines if you’re unable to do so.
Property and Financial Affairs LPA – gives attorneys authority over paying bills, taxes, investments and property if you become incapacitated.
Establishing LPAs while you still have mental capacity is the best way to control who handles your affairs if the worst happened. The alternative is unpredictability.
Consequences of Losing Capacity Without an LPA
Unfortunately, without LPAs in place, it becomes complex for anyone to deal with your affairs if you lose mental capacity. Potential issues include:
Family Cannot Access Accounts
Even close relatives have no automatic rights to manage your finances like paying care bills or utility bills in an emergency – a potential nightmare situation.
Court of Protection Deputies Required
Your family would need to apply officially through the Court of Protection for authority to become your deputy and manage your affairs. The court application process takes time when urgent action may be needed. There’s also no guarantee the court will appoint the person you would have chosen.
Risk of Financial Abuse
Vulnerable incapacitated individuals are at higher risk of money being stolen or mishandled without the oversight LPAs provide.
Disputes Over Healthcare
If you haven’t granted anyone LPA powers over health & care, disagreements can arise between medics and relatives. Without legal authority, your next of kin cannot easily intervene in treatment.
Additional Fees
Solicitors and accountants must be hired to handle financial affairs without LPAs costing your estate more.
Delays Applying for State Benefits
No LPA attorneys means nobody with immediate power to claim benefits you may now be entitled to.
Securing Your Future Choices with LPAs
Avoid these worries by speaking to a specialist advisor like MWQ Estate Planning about arranging LPAs urgently. We can guide you through the process of establishing legally valid LPAs that:
- Appoint one or more people you trust to act as your attorneys if needed – usually close family or friends who know your wishes.
- Set replacement attorneys in case your first choices can no longer take on the role.
- Define what powers you authorise attorneys to enact on your behalf if you lost capacity.
- Place safeguards like limits on gifting or requiring regular accounting reports.
- Are registered with the Office of the Public Guardian for official monitoring.
With LPAs in place, you control in advance who handles your important affairs if the worst happens. Your attorneys have legal authority to make decisions in your best interests but must follow Codes of Practice. This prevents financial abuse and reduces disputes between relatives over your welfare.
Act now before it becomes too late. Speak to MWQ Estate Planning for comprehensive advice on creating LPAs to protect your future interests should you ever lose capacity.
How We Can Help You Establish an LPA
The specialist team at MWQ Estate Planning regularly helps people put LPAs in place for added peace of mind later in life. We provide:
- Expert advice on deciding the right people to name as your attorneys and replacements.
- Guidance on setting appropriate restrictions to safeguard your interests.
- Drafting legally valid LPA documents.
- Supporting the registration process.
- Storing your LPA copies safely.
- Ensuring your attorneys understand their duties.
Don’t risk losing autonomy over your affairs. Let MWQ Estate Planning assist you to establish watertight LPAs in advance, so you control who steps in if ever needed. Contact us today to discuss how to safeguard your future.
