A Power of Attorney (PoA) is an important legal safeguard, enabling someone you trust to make decisions on your behalf if you become unable to do so yourself. But what happens if you do not have one in place and circumstances change unexpectedly?
At Blackstone Solicitors, we advise clients across England and Wales on the consequences of not having a Power of Attorney, and the legal steps that may be needed in such situations. This article explains what can occur if no PoA exists, why it matters, and the potential challenges families may face.
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Understanding a Power of Attorney
A Power of Attorney is a legal document that allows an appointed person (known as the “attorney”) to make decisions for another person (the “donor”). In England and Wales, the most common form is the Lasting Power of Attorney (LPA), which can relate to:
- Property and Financial Affairs – decisions about money, property, and other assets.
- Health and Welfare – decisions about medical treatment, daily care, and living arrangements.
An LPA can only be used once it is registered with the Office of the Public Guardian. Crucially, it can only be made while the donor has the mental capacity to understand the arrangement.
When There Is No Power of Attorney
If a person loses the ability to make decisions – for example, due to dementia, a stroke, an accident, or serious illness – and has no PoA in place, nobody automatically has the legal authority to act for them.
Even close family members, spouses, or civil partners cannot simply take over decision-making without formal legal authority. This applies both to financial matters (such as accessing bank accounts, paying bills, or selling property) and to certain healthcare decisions.
Financial Consequences of Not Having a Power of Attorney
Without a registered Property and Financial Affairs LPA:
- Bank accounts may be frozen – If the account holder loses capacity, banks may restrict access to prevent unauthorised transactions, even by a joint account holder.
- Bills and expenses may go unpaid – Mortgage payments, utility bills, and care home fees could be delayed if no one can authorise payment.
- Assets cannot be sold or managed – Property sales, investments, or changes to financial arrangements cannot proceed without legal authority.
- Business interests may suffer – If the person is a sole trader or company director, business operations may be disrupted without a decision-maker in place.
Health and Welfare Implications
Without a Health and Welfare LPA:
- Decisions fall to healthcare professionals – Doctors, social workers, and care providers will make decisions in the person’s “best interests,” as required by the Mental Capacity Act 2005.
- Family input may be limited – While professionals will consult with relatives where possible, family members have no guaranteed right to decide.
- Potential disputes – If relatives disagree about the person’s care, the decision could be referred to the Court of Protection, which will determine the outcome.
The Role of the Court of Protection
If someone loses mental capacity and has no PoA, the only way to gain legal authority to act on their behalf is through the Court of Protection.
The Court can appoint a Deputy to make decisions for the person. There are two main types of Deputy:
- Property and Financial Affairs Deputy – Manages the person’s money, property, and bills.
- Personal Welfare Deputy – Makes decisions about health care and personal welfare (these are less common and only appointed in certain cases).
Applying to Become a Deputy
The process of applying for deputyship can be lengthy, complex, and costly. It generally involves:
- Completing detailed application forms;
- Obtaining medical evidence of the person’s lack of capacity;
- Providing a full account of the person’s financial situation;
- Paying application and ongoing supervision fees to the Office of the Public Guardian.
The Court may appoint more than one Deputy or require that certain decisions receive court approval before being made.
Disadvantages of Relying on Deputyship
While deputyship is a vital safeguard, it is generally less flexible and more burdensome than having a Power of Attorney in place. Key drawbacks include:
- Delays – It can take several months for the Court to approve a deputyship application, during which time important matters may be left unresolved.
- Higher costs – Application fees, ongoing supervision fees, and potential legal fees can be significant.
- Less personal choice – The person losing capacity has no say in who is appointed as Deputy. The Court could choose someone the family might not expect, including a professional Deputy.
- Ongoing reporting – Deputies must submit annual accounts to the Office of the Public Guardian, which can be time-consuming.
Common Scenarios When No Power of Attorney Exists
- Sudden Illness or Accident
A person involved in a serious accident or suffering a sudden illness (such as a stroke) may be left unable to make decisions. Without a PoA, family members may struggle to arrange care or manage finances quickly.
- Progressive Conditions
In cases of degenerative illnesses such as Alzheimer’s disease, mental capacity can diminish gradually. By the time relatives realise the person can no longer make decisions, it may already be too late to set up a PoA.
- Overseas Issues
If the person owns assets abroad or needs medical treatment in another country, the lack of a PoA can make dealing with foreign institutions extremely difficult.
How to Avoid These Problems
The simplest way to prevent these challenges is to put in place a Lasting Power of Attorney while you have capacity. This allows you to:
- Choose who will manage your affairs;
- Set out guidance or restrictions on how decisions should be made;
- Avoid the delays and costs associated with deputyship;
- Provide clarity and reassurance for your loved ones.
An LPA does not mean giving up control immediately – for a Property and Financial Affairs LPA, you can choose whether it is used straight away (with your consent) or only if you lose capacity.
What to Do If It’s Already Too Late
If capacity has already been lost and no PoA exists, the priority is to apply to the Court of Protection for deputyship as soon as possible. In urgent cases – for example, where care fees must be paid or a property sale is time-sensitive – it may be possible to request an emergency court order.
You should:
- Seek legal advice promptly;
- Gather information about the person’s financial and medical circumstances;
- Prepare to provide detailed records and reports once appointed as Deputy.
How Blackstone Solicitors Can Help
At Blackstone Solicitors, we advise individuals and families across England and Wales on both setting up Powers of Attorney and dealing with situations where no PoA exists. We can:
- Draft and register Lasting Powers of Attorney;
- Provide guidance on choosing and briefing attorneys;
- Advise on deputyship applications to the Court of Protection;
- Represent you in contested applications or disputes over who should be appointed;
- Assist with ongoing reporting obligations for Deputies.
Our goal is to ensure that your interests – or those of your loved ones – are protected, and that matters are resolved as efficiently and sensitively as possible.
Conclusion
Not having a Power of Attorney in place can create significant legal, financial, and personal difficulties if mental capacity is lost. Without one, no one has the automatic right to make decisions, and the only alternative is to go through the Court of Protection, which can be costly and time-consuming.
By making a Lasting Power of Attorney while you are still able, you take control of your future and spare your loved ones unnecessary stress. If you or someone you care for is already in a situation without a PoA, professional legal advice is essential to navigate the deputyship process and safeguard the person’s interests.
Blackstone Solicitors can provide clear, practical advice tailored to your circumstances. We are here to help you plan ahead or act swiftly if urgent action is needed.
We have a proven track-record of helping clients create a lasting power of attorney. This also includes all the different types, even if you need more than one. We are a multidisciplinary firm and have all the expertise inhouse to satisfy the most exacting requirements of our clients. We will guide you through all the necessary legal due diligence in a comprehensive and timely manner. We firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
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How to Contact Our Wills and Probate Solicitors
It is important for you to be well informed about the issues and possible implications of a Power of Attorney. However, expert legal support is crucial in terms of ensuring your wishes are met as you would want them to be.
To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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