Can you afford not to have Lasting Powers of Attorney in place?

What if, tomorrow, you could no longer speak for yourself? Who would take care of your affairs, your health, your wishes? Losing the ability to make decisions is a reality that no one likes to anticipate. In the UK, the solution is called Lasting Power of Attorney (LPA). This is a legal document that allows you to appoint one or more trusted persons to make decisions on your behalf if you become incapable of doing so yourself. It is created while you are still in full possession of your mental faculties. It is strongly recommended that you be accompanied by a solicitor in wills, trusts, and estate planning, who will be able to guide you through creating and registering your LP.

Understanding the step-by-step consequences of being unprepared reveals why advance planning is essential, not optional.

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When illness strikes without a Power of Attorney: a legal vacuum with far-reaching consequences

In the UK, if a person loses their mental faculties, due to dementia,  stroke, or accident without having created a Lasting Power of Attorney (LPA), those closest to them find themselves at an impossible situation. Contrary to popular belief, neither spouses, children, nor other family members automatically have any legal right to make decisions on the person’s behalf.

The Court of Protection Process

What happens if someone has dementia and no power of attorney? The family must apply to the Court of Protection to be appointed as deputy. This legal procedure, although provided for by law, creates immediate and ongoing difficulties:

• Financial paralysis: Bank accounts become frozen once the institution becomes aware of the person’s incapacity. Bills cannot be paid, care costs cannot be covered, and the family cannot access funds precisely when expensive care needs begin.
• Property management crisis: The family home cannot be sold to fund care, mortgages cannot be managed, and property maintenance decisions cannot be made. Properties may deteriorate while families wait months for legal authority.
• Healthcare decision delays: While emergency treatment can proceed, complex medical decisions become problematic. Care home arrangements, treatment choices, and ongoing healthcare management require lengthy legal processes.
• Expensive legal requirements: The deputyship application involves compiling extensive documentation, court fees of over £750, legal representation costs of £2,000-£5,000, and ongoing annual supervision fees. Processing takes 6-9 months during which time the person’s affairs remain in limbo.
• Ongoing restrictions: Even after obtaining deputyship, court-appointed deputies face continuing limitations that LPA attorneys do not. They must seek court approval for major decisions, provide annual accounts, and operate under permanent supervision.

This scenario illustrates exactly what happens if someone has dementia and no power of attorney. The courts intervene in the absence of  advance planning, with all the difficulties, delays, and costs this entails for families already dealing with distressing circumstances.

After death: what happens without a will or power of attorney?

Many people mistakenly believe that a Power of Attorney continues after death. However, in the UK, Lasting Power of Attorney automatically terminates upon the donor’s death. If no will exists, an entirely different and more complex mechanism takes over.

The reality of dying intestate: Without a will, the law of intestate succession applies. Legal rules determine who inherits what, often producing outcomes completely contrary to what the deceased would have wanted, particularly in situations involving second marriages, stepchildren, or unmarried partners.

Administrative complications: Who has power of attorney after death if there is no will? The answer is stark: nobody, Someone must apply to become administrator of the estate through probate court, a process more complex and expensive than executing a will.

Family conflict and delays: The absence of clear instructions creates fertile ground for family disputes about the deceased’s intentions. These conflicts can take years to resolve, cost tens of thousands in legal fees, and permanently damage family relationships during the grief process.

Business and financial disruption: Business interests cannot be managed, property cannot be sold or maintained, time-sensitive financial decisions cannot be made, and assets may deteriorate in value while legal processes unfold over months or years.

With a Power of Attorney, everything is simpler for you and your loved ones

Creating a Lasting Power of Attorney (LPA) while you retain full mental capacity is an act of foresight that transforms potential crisis into manageable transition. It gives your loved ones the legal authority to act quickly, effectively,  immediately when serious illness strikes:

• Immediate legal authority: When dementia or loss of capacity occurs, your appointed attorney can immediately manage your finances, pay bills, ensure your assets are protected, and make medical decisions according to your previously expressed wishes. They do not need to apply to courts or wait for legal authorization.
• Clear framework and protection: Everything is transparent because you have made these choices in advance. The LPA provides a clear framework, defined limits, and legal legitimacy for the person representing you. This prevents family disputes about who should make decisions, eliminates lengthy legal procedures, and avoids unnecessary costs that can devastate family resources during already difficult times.
• Continuity of care: Your attorney can ensure seamless continuation of your lifestyle and care preferences, making decisions based on their knowledge of your values and wishes rather than generic legal standards applied by strangers.

FAQs

1. When should an LPA be set up? LPAs should be created while you have full mental capacity, ideally as part of comprehensive estate planning. Don’t wait for signs of illness; once capacity is lost, the opportunity is gone forever.
2. Who can be appointed as attorney? Any trusted person over 18, including family members, friends, or professionals. Choose people who understand your values, are reliable, and can work together if you appoint multiple attorneys.

3. What should I do if an attorney abuses his power? Report concerns to the Office of the Public Guardian, who can investigate and take action. The Court of Protection can remove attorneys and appoint alternatives if abuse is proven.

The choice is clear: invest in proper legal protection now, or risk leaving your family to navigate expensive court processes, months of bureaucracy, and immense stress when they’re already dealing with your illness or loss.

Leave nothing to chance!

Qredible’s network of specialist solicitors in wills, trusts, and estate planning understand exactly how to create comprehensive LPAs that provide maximum protection while avoiding common pitfalls.

KEY TAKEAWAYS

• Without LPAs, mental incapacity triggers expensive, time-consuming court processes that could be entirely avoided with advance planning.
• LPAs provide immediate legal authority, preserve family harmony, and cost significantly less than court alternatives.
• Power of Attorney ends at death, making a will essential for comprehensive protection.
• Professional legal guidance ensures properly structured LPAs that work effectively when needed.