When a person begins to lose mental capacity, it can be a deeply distressing time for those close to them. For many families, the situation is made far more difficult when no Lasting power of Attorney (LPA) has been put in place before capacity is lost. Questions quickly arise about who has the authority to make decisions, how medical and care arrangements will be managed, and how finances can be accessed or protected.
AFG Law explains what happens when a person has lost mental capacity and no Lasting Power of Attorney exists, why it is no longer possible to obtain a Power of Attorney at that stage, and how families can instead apply to the court for legal authority through the Court of Protection.
Understanding mental capacity
Mental capacity refers to a person’s ability to make a specific decision at the time it needs to be made. A person may be able to manage some matters but not others. However, as conditions such as dementia progress, a person may gradually lose mental capacity altogether.
A person is considered to have lost mental capacity if they can no longer:
- Understand information relevant to a decision
- Retain that information long enough to make the decision
- Use or weigh the information
- Communicate their wishes
Once someone has lost mental capacity, they are unable to make legally binding decisions themselves, and others must step in to make decisions on your behalf in accordance with the law.
What is a Lasting Power of Attorney and why timing matters
A Lasting Power of Attorney (LPA) allows a person to choose who will act for them if they become unable to manage their own affairs. There are two types:
- Property and financial affairs
- Health and welfare
An LPA is a forward-planning document. Crucially, an LPA is a legally valid authority only if it is made before mental capacity is lost. Once a person has lost mental capacity, it is no longer possible to create an LPA, regardless of how clear their wishes may seem to family members.
This often comes as a shock to relatives who assume they can arrange matters later if needed.
What happens if there is no power of attorney?
When someone has lost mental capacity and no LPA exists, no individual automatically has the authority to make decisions, even a spouse or close family member.
This can affect:
- Access to bank accounts
- Paying bills or care fees
- Decisions about a care home
- Consent to medical treatment
- Wider health and care planning
In practice, this often leads to urgent difficulties. Banks may freeze accounts, care providers may refuse instructions, and professionals may be forced to rely on best-interests processes without clear legal authority.
Those seeking to make decisions on behalf of someone who has lost mental capacity will need to make an application to the Court of Protection.
Can a family member make decisions without legal authority?
A family member does not automatically have the right to act on your behalf when mental capacity is lost. While relatives are often consulted, consultation is not the same as decision-making power.
Without formal authority:
- A family member cannot sell property
- Cannot access savings
- Cannot sign care contracts
- Cannot make important decisions about long-term care
This is why many families find themselves needing to apply to the court once capacity has been lost.
Medical treatment and health decisions without an LPA
Where no health and welfare LPA exists, decisions about medical treatment are usually made by healthcare professionals in the person’s best interests.
Doctors, hospitals, and care providers must consider:
- Clinical need
- Safety
- Views of family members
- Any known past wishes
However, without a legally appointed attorney to make decisions, families may feel excluded or powerless, particularly where treatment decisions or placement in a care home are contested.
Serious disputes may require formal involvement of the court of protection.
Financial affairs without an LPA
Financial matters are often where the absence of an LPA causes the greatest difficulty. Without legal authority, banks and financial institutions will not allow access, even to pay for care.
If care fees are required and no funds can be accessed, a local council may temporarily intervene to ensure care continues, but this does not resolve long-term control of finances.
At this stage, the only solution is to apply to the Court of Protection for authority.
The role of the Court of Protection
The Court of Protection is a specialist court that deals with decisions for people who have lost mental capacity.
The court can:
- Appoint a deputy to manage finances
- Make one-off decisions about property or care
- Resolve disputes about treatment or placement
- Oversee ongoing decision-making arrangements
A deputy appointed by the court has the legal authority to make decisions and can lawfully act on your behalf.
Applying to the Court of Protection
To obtain authority, an interested person (often a family member) must apply to the court. This involves:
- Medical evidence confirming the person has lost mental capacity
- Details of the decisions that need to be made
- Financial disclosure where property and financial affairs are involved
The process can take several months, during which interim arrangements may be required.
Once appointed, the deputy must act in the person’s best interests and within strict legal limits.
Property and financial affairs deputyship
A deputy appointed for property and financial affairs can:
- Access bank accounts
- Pay bills and care fees
- Manage pensions and benefits
- Sell or rent property if authorised
This authority replaces what an LPA would have provided, but it is more restrictive and subject to court supervision.
Health and welfare deputyship
Deputies for health and welfare are less commonly appointed. The court usually prefers decisions about health and care to be made jointly by professionals and family under best-interests principles.
However, in complex or disputed cases, the court may appoint a deputy to make ongoing decisions on your behalf relating to care arrangements or residence.
Oversight by the Office of the Public Guardian
Deputies are supervised by the Office of the Public Guardian.
The Office of Public Guardian:
- Monitors deputy conduct
- Reviews annual reports
- Investigates concerns or complaints
- Protects vulnerable people from abuse or misuse of funds
This oversight provides reassurance but also adds administrative responsibility.
Involvement of the local council
A local council often becomes involved where care needs are urgent or funding is unclear. Councils may:
- Arrange temporary care
- Carry out needs assessments
- Conduct financial assessments
However, the council does not gain long-term authority over finances or welfare unless specifically authorised by the court.
Can you get a Power of Attorney once dementia has started?
A diagnosis of dementia does not automatically prevent someone from making an LPA. If a person still understands the nature and effect of the document, a power of attorney LPA may still be possible.
However, once capacity is lost, it is too late. At that point, only the court of protection can grant authority.
This highlights the importance of early advice and planning.
Why Court of Protection Orders are often necessary
Court applications are often unavoidable where:
- No LPA exists
- Significant assets need managing
- Long-term care is required
- Disputes arise between professionals and family
While the process can feel daunting, it provides a lawful framework for making important decisions safely and transparently.
Planning ahead to avoid court applications
Many Court of Protection applications could be avoided if LPAs were put in place earlier. An LPA allows a chosen attorney to make decisions without ongoing court involvement and gives families clarity and control.
Once capacity is lost, the court route is the only option.
Speak to AFG Law
If a loved one has lost mental capacity and no Power of Attorney exists, it is essential to act quickly to protect their interests and ensure lawful decision-making.
AFG Law advises families on Court of Protection applications, deputyship orders, disputes relating to medical treatment, care funding, and complex health and welfare decisions. We provide clear, compassionate guidance through what can be a challenging and emotional process.
If you are unsure who has the right to make decisions on your behalf, or need help to apply to the court, our experienced solicitors can explain your options and support you every step of the way.
Contact AFG Law today for confidential advice tailored to your situation.