Ask someone what a Will protects, and they’ll usually mention the house, the savings, who gets what. Ask what protects them if they’re still alive but can no longer make decisions for themselves, and most people go quiet. A Will only takes effect after death. It does nothing for the years you might spend unable to manage your own affairs while you’re still here, and that’s exactly the gap a Lasting Power of Attorney is built to close.
That gap catches people out constantly, and it isn’t reserved for old age. A stroke can happen at forty. A head injury from a car accident can happen at twenty-five. Sudden illness doesn’t check your date of birth first. Mental capacity can be lost in an instant, at any age, and the moment it happens, your Will is irrelevant. What matters instead is whether you’ve set up a Lasting Power of Attorney, and whether it’s been registered.
What Losing Mental Capacity Means
Legally, losing mental capacity means you’re no longer able to understand, weigh up, or communicate a decision at the time it needs to be made. It sounds abstract until you see how ordinary the causes usually are. Dementia is the one people picture first, but a stroke, a serious road accident, a brain injury from a fall, a period of intensive care after major surgery, or a severe mental health crisis can all remove capacity just as suddenly, sometimes overnight. Some of these are temporary. Others aren’t. Either way, the legal position while it lasts is the same: someone else needs the authority to act for you, and without a Lasting Power of Attorney, nobody automatically has that authority.
What Happens Without a Lasting Power of Attorney
Here’s the part that surprises most clients. Without a Lasting Power of Attorney, nobody, not even a spouse or civil partner, automatically has the legal right to manage your finances or make decisions on your behalf. There’s no such thing as automatic next-of-kin authority in English law, whatever the phrase implies. Banks freeze accounts once they’re told a customer has lost capacity. Mortgage payments can be missed. Bills go unpaid while the family works out what they’re even allowed to do, and joint accounts don’t always solve the problem either, since banks can restrict them too once capacity is in question.
The only route left at that point is applying to the Court of Protection for a Deputyship Order. It works, eventually, but it’s slow and it isn’t cheap. Deputyship applications typically cost somewhere between £1,000 and £5,000 once court fees, medical evidence, and legal costs are added up, and the process commonly takes three to six months from start to finish, longer if the application is contested or anything is missing. Once a Deputy is appointed, they don’t get a free hand either. The Court of Protection keeps them under ongoing supervision, requires annual reports accounting for every decision made, and can ask for a supervision bond as security. Families end up managing a health crisis and a legal process at the same time, at exactly the point they can least afford the extra pressure.
The Two Types of Lasting Power of Attorney
A Lasting Power of Attorney comes in two separate forms, and most people benefit from setting up both. The Property and Financial Affairs LPA lets your chosen attorney manage bank accounts, pay bills, handle your mortgage or rent, and sell property if necessary. With your permission, it can even be used before you lose capacity, which is useful if illness or injury makes day-to-day banking difficult without removing your ability to make decisions entirely. The Health and Welfare LPA is different. It covers decisions about medical treatment, care arrangements, and where you live, and it only ever takes effect once you’ve lost capacity, never before.
Each one is a separate legal document, registered separately with the Office of the Public Guardian, and each carries its own registration fee, currently £92 per document, so £184 if you’re setting up both. Reduced fees are available if your income is low, and some people qualify for a full exemption depending on the benefits they receive. Once submitted, registration currently takes around twenty weeks, which is longer than most people expect, and it’s a large part of why setting one up early matters more than people assume.
Misconceptions That Catch People Out
The assumption I hear most often is that a spouse or adult child will simply be allowed to step in. They won’t, not without an LPA already registered, regardless of how close the relationship is or how obvious it seems that they’d be the right person. The second assumption is that this is a document for later in life. Most Deputyship applications I’ve come across haven’t involved someone elderly at all. They involved a working-age adult after an accident, a stroke, or a sudden illness, at a moment their family had never planned for and couldn’t have predicted.
Setting One Up: What the Process Involves
Making an LPA starts with choosing your attorneys, the people you trust to act for you, and deciding whether they act jointly on every decision or can act independently of each other. You’ll also need a certificate provider, an independent person who confirms you understand what you’re signing and aren’t under pressure to do it. Once everyone has signed the correct sections, the completed forms go to the Office of the Public Guardian along with the registration fee, and the document becomes usable once the OPG confirms it’s registered. None of this needs to happen all at once, and preparing the forms in good time before registration means the twenty-week wait isn’t happening in the middle of a crisis.
Why It Can’t Wait
I’ve had clients tell me they’ll get round to it once they’re older. I understand the instinct. Nobody wants to imagine losing capacity, and putting it off feels harmless right up until it isn’t. But a Lasting Power of Attorney can only be made and registered while you still have the capacity to make one. Once capacity is lost, that window has already closed, and a Deputyship application is the only option left.
I hope you’ve read this whole article without losing capacity. Jokes aside, not everyone reading something like this today will be so lucky tomorrow. The only way to control what happens next is to decide it now, while the decision is still yours to make.
Frequently Asked Questions
How much does a Lasting Power of Attorney cost?
The Office of the Public Guardian charges £92 to register each LPA, so £184 for both types. Reduced fees and exemptions are available based on income and certain benefits. Solicitor fees, if you use one to prepare the documents, are separate and vary by firm.
How long does it take to register an LPA?
Current OPG processing time is around twenty weeks from receipt of a correctly completed application. That’s a strong reason to arrange one well before it’s needed rather than during a crisis.
What happens if I lose capacity without one in place?
Your family would need to apply to the Court of Protection for a Deputyship Order, a process that typically costs between £1,000 and £5,000, takes three to six months, and places the appointed Deputy under ongoing court supervision.
Can my spouse make decisions for me automatically?
No. English law doesn’t give a spouse, civil partner, or any other relative automatic authority over your finances or care simply because of the relationship. Without a registered LPA, they would need to apply to the court like anyone else.
For confidential advice on setting up a Lasting Power of Attorney, please get in touch:
01277 562 567 | ian.nicholson@bwep.uk | www.bwep.uk