What Happens If You Lose Capacity Without an LPA? Understanding Deputyship

What Happens If You Lose Capacity Without an LPA? Understanding Deputyship

The Problem

If you lose mental capacity — through dementia, a stroke, a serious accident, or any other cause — and you have not put a Lasting Power of Attorney in place, your family faces a difficult situation. No one, not even your spouse, has automatic legal authority to manage your bank accounts, pay your bills, deal with your property, or make decisions about your care.

To gain that authority, a family member or other interested party must apply to the Court of Protection to be appointed as your "deputy."

What Is a Deputyship?

A deputyship order is a court order appointing someone to make decisions on behalf of a person who lacks mental capacity. Like LPAs, there are two types of deputy — one for property and financial affairs, and one for personal welfare — though personal welfare deputyships are relatively uncommon and are only granted when the court considers it necessary.

How Deputyship Differs from an LPA

There are several important differences between an LPA and a deputyship:

You do not choose your deputy. While you choose your own attorneys under an LPA, in a deputyship application, it is the court that decides who to appoint — though it will usually appoint the person who applies (typically a close family member). If there is a dispute about who should be deputy, the court will decide, and the outcome may not be what you would have wished.

The process is slower and more expensive. The Court of Protection application fee is £371, significantly more than the £92 per LPA. You will also likely need to pay for a solicitor to prepare the application, which can cost several thousand pounds. The process typically takes several months.

Ongoing court supervision. Unlike attorneys under an LPA, deputies are subject to ongoing supervision by the OPG. They must submit annual reports, and there is an annual supervision fee (currently ranging from £35 to £320 depending on the level of supervision). This creates an ongoing administrative burden and cost.

Deputies may have more limited powers. The court may restrict a deputy's powers more than an LPA donor would typically restrict their attorneys. For example, a deputy may need to seek specific court approval for certain transactions, such as selling property.

The Emotional Cost

Beyond the financial and practical implications, the deputyship process can be extremely stressful for families. Applying to the Court of Protection during a medical crisis — when a loved one has just suffered a stroke or received a dementia diagnosis — adds legal complexity and delay to an already overwhelming situation.

Family disputes about who should be deputy can cause lasting damage to relationships. And the delay in obtaining a deputyship order can leave bills unpaid, care arrangements in limbo, and families unable to access the funds they need.

The Simple Solution

An LPA, made while you still have capacity, avoids all of these problems. It is cheaper, faster, more flexible, and puts you — not a court — in control of who will manage your affairs.

The registration fee of £92 per LPA is a fraction of the cost of a deputyship application. The process takes weeks rather than months. And there are no ongoing supervision fees.

If you have been putting off making an LPA, consider this: an LPA can only be made while you have mental capacity. Once capacity is lost, the option is gone. The best time to make an LPA is now.

If you would like to discuss setting up an LPA, please contact Safe Harbour Legal.

This guide is intended as general legal information and does not constitute legal advice. Safe Harbour Legal is a trading name of Legal Studio, authorised and regulated by the Solicitors Regulation Authority.