If You Lost Capacity Tomorrow: Who Could Actually Help You?

Powers of Attorney in England and Wales and why they matter sooner than most people expect

Most people assume that if something happened to them - an accident, illness, or sudden loss of capacity - a spouse or close family member could simply step in and take care of things.

In England and Wales, that assumption is often wrong.

Without the right legal authority in place, even the people closest to you may have no automatic right to manage your finances, make healthcare decisions, or deal with property and practical matters on your behalf. It is often only when capacity is lost that families discover this - at exactly the moment when clarity and certainty matter most.

This article explains how powers of attorney work, what happens if capacity is lost without one, and how thoughtful planning can protect both you and the people who may one day need to act for you.

What happens if you lose capacity without a power of attorney?

If you lose mental capacity without having made a valid LPA, no one automatically gains the legal authority to act for you - not a spouse, not adult children, not long-term partners.

In practical terms, this can mean:

• Bank accounts being frozen

• Bills and mortgages going unpaid

• Property transactions being delayed or abandoned

• Healthcare decisions being made without reference to your wishes

• Families facing lengthy and stressful court applications

In these situations, families are often forced to apply to the Court of Protection to be appointed as a deputy. This process can be slow, expensive, and emotionally draining - and the outcome may not reflect the choices you would have made yourself.

Understanding powers of attorney in England and Wales

A power of attorney is a legal document that allows you to appoint someone you trust to make decisions on your behalf if you are unable to do so yourself.

In England and Wales, the most commonly used form is a Lasting Power of Attorney (LPA). LPAs are regulated documents with strict legal requirements, and they must be made while you still have mental capacity.

There are two separate types of LPA, each covering different areas of life.

The two types of lasting power of attorney

Property and Financial Affairs LPA

This allows your appointed attorney to deal with financial and property matters, such as:

• Managing bank accounts and investments

• Paying bills and taxes

• Buying or selling property

• Dealing with pensions or business interests

This type of LPA can be used while you still have capacity, if you choose, or only once capacity is lost.

Health and Welfare LPA

This covers decisions about personal welfare, including:

• Medical treatment and care

• Living arrangements

• Daily routine and support

• Life-sustaining treatment decisions

A Health and Welfare LPA can only be used once you have lost capacity, and it ensures that someone you trust is involved in decisions that affect your quality of life and dignity.

But surely my partner could help?

This is one of the most common misunderstandings.

Marriage, civil partnership, or long-term cohabitation does not automatically give someone the legal authority to manage another person’s finances or make healthcare decisions on their behalf.

Professionals such as banks, care providers, and medical teams are legally required to follow strict rules. Without an LPA in place, they may be unable to take instructions - even where everyone involved agrees on what should happen.

Powers of attorney are about control, not giving it up

A well-drafted LPA does not remove your independence. It allows you to decide in advance:

• Who you trust to act

• What decisions they can make

• When their authority begins

• Whether safeguards or conditions apply

Many people delay making an LPA because they fear losing control. In reality, an LPA is one of the most effective ways to retain control in uncertain circumstances, rather than leaving decisions to chance or to the court.

When timing matters more than people expect

Loss of capacity is often associated with older age, but in practice it can arise unexpectedly through:

• Stroke or brain injury

• Serious accident, infection or illness

• Complications from surgery

• Progressive neurological conditions

Once capacity has been lost, it is too late to make a power of attorney. At that point, even the most carefully expressed wishes may not be legally enforceable.

How powers of attorney reduce family stress and conflict

Families often assume they will naturally agree on what is best. In reality, stressful situations can magnify differences in opinion, particularly where authority is unclear.

A properly prepared LPA can:

• Prevent disputes between family members

• Reduce pressure on a single person to act without authority

• Provide clarity at emotionally difficult moments

• Avoid costly and time-consuming court applications

Above all, it gives families confidence that they are acting lawfully and in accordance with your wishes.

A will protects what happens after death. A power of attorney protects everything before.

Many people invest time and care in preparing a will, while leaving the far more likely risk - loss of capacity during life - unaddressed.

In reality, wills and powers of attorney work best together. One deals with what happens after death. The other protects your interests, autonomy, and wellbeing during life.

Discussing your situation

Powers of attorney are not one-size-fits-all documents. The right structure depends on your family circumstances, assets, health considerations, and how much flexibility or control you wish to retain.

At Eddison Cogan Lawyers, advice on powers of attorney is approached with care, clarity, and an understanding that these arrangements are often part of wider personal and family planning. Taking time to consider the options properly can help ensure that any power of attorney reflects your intentions clearly, complies with the law, and works smoothly if it is ever needed.

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FAQ's

What happens if I lose mental capacity without a power of attorney?

Without a power of attorney, no one has automatic authority to act for you. Family members may need to apply to the Court of Protection, which can be slow and costly.

Can my spouse make decisions for me without an LPA (Lasting Power of Attorney) ?

No. Marriage or civil partnership does not give automatic legal authority to manage finances or make healthcare decisions.

What is the difference between the two types of lasting power of attorney?

One covers property and financial affairs. The other covers health and welfare decisions. They serve different purposes and are often used together.

When does a lasting power of attorney take effect?

A Property and Financial Affairs LPA can be used while you still have capacity if you choose. A Health and Welfare LPA can only be used once capacity is lost.

What happens if someone loses capacity before making a power of attorney?

At that point, an LPA cannot be created. A Court of Protection application may be required instead.

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The following note is included for clarity and completeness:

This article is provided for general information purposes only and does not constitute legal advice. The law in England and Wales may change, and its application will depend on individual circumstances. Reading this article does not create a solicitor-client relationship. You should seek independent legal advice before taking or refraining from any action based on the information contained here.