What Happens If Someone Loses Capacity Without an LPA?

If someone loses mental capacity without having made a lasting power of attorney, the legal consequences are serious, expensive, and time-consuming for everyone involved. There is no automatic right for a family member — not even a spouse, adult child, or sibling — to manage the affairs of a person who has lost capacity. Without a registered LPA in place, no one has legal authority to access the person’s bank accounts, manage their investments, sell their property, or make decisions about their medical treatment. The only route to that authority is an application to the Court of Protection, and the court process is far more complex, costly, and restrictive than the alternative of having made an LPA when capacity was intact.

The Mental Capacity Act 2005 governs this entire area of law. It establishes the principle that capacity is decision-specific and time-specific — a person may have capacity to make some decisions but not others — and it creates the Court of Protection as the specialist court for personal welfare and property decisions involving people who lack capacity. The Act also imposes a statutory test of capacity (s.2 and s.3 MCA 2005) that must be applied when assessing whether someone needs court involvement, and it establishes a best interests framework (s.4 MCA 2005) that governs all decision-making for people without capacity.

This guide explains what happens in practical terms when someone loses capacity without an LPA, how the Court of Protection deputyship process works, the ongoing obligations of a deputy, and the special provisions for statutory wills. For guidance on making an LPA before capacity is lost, see our LPA guide. For how these issues interact with estate administration, see our guide to estate administration.

The Mental Capacity Act 2005: The Legal Framework

The Mental Capacity Act 2005 came into force in April 2007 and fundamentally changed the law on decision-making for people who lack capacity. It established five statutory principles: the presumption of capacity; the right to make unwise decisions; the requirement to provide all practicable support before concluding that capacity is absent; the requirement that any act or decision for an incapacitated person be in their best interests; and the requirement to choose the least restrictive option. These principles apply to everyone who deals with a person who may lack capacity — including doctors, care workers, family members, and the court.

Capacity under the Act is assessed by reference to a functional test: can the person understand the relevant information, retain it long enough to use it, use and weigh it in making the decision, and communicate their decision? A person who cannot do any of these things lacks capacity for that decision at that time. The test is applied decision by decision — a person may have capacity to decide what to eat for lunch but lack capacity to manage a complex investment portfolio or to understand the implications of selling their home.

Why the Absence of an LPA Creates Practical Problems

When a person loses capacity and has no registered LPA, the immediate practical consequences are stark. Their bank will freeze individual accounts (as opposed to joint accounts, where the surviving account holder retains access) and refuse to allow any third party to operate them. Direct debits for care costs, utilities, and mortgage payments may fail. Pension and investment income will continue to accumulate but cannot be accessed. If the person needs to sell their home to fund care fees, no one has authority to instruct estate agents or conveyancers, sign contracts, or complete the sale.

Family members who start managing the finances informally — paying bills from their own money, redirecting post, or negotiating with care providers — may find they have inadvertently created legal obligations or liabilities without any corresponding authority. The solution in all of these scenarios is the same: an application to the Court of Protection for a deputyship order. The OPG provides an overview of the process, and GOV.UK sets out guidance on the Court of Protection including how to apply.

Applying for Deputyship: The PA01 Process

An application for a deputyship order is made using forms COP1 (application form), COP3 (assessment of capacity), and COP4 (deputy’s declaration), together with supporting evidence of the person’s incapacity and a statement of why a deputyship is needed. As of 2026, the application fee is £371 for a personal welfare application and £371 for a property and financial affairs application, though fees are reviewed periodically. Additional costs include a security bond that most property deputies must obtain (typically 30p to 50p per £100 of assets per year) and the OPG’s annual supervision fee (from £35 for minimal supervision to £320 for general supervision in 2026).

The Court of Protection typically takes three to six months to process a straightforward application and issue a deputyship order, though urgent applications in cases of immediate risk can be processed faster. During that waiting period, the protected person’s affairs may be in limbo. Some banks have emergency access procedures for basic living expenses, but these are inconsistent across institutions. The gap in legal authority during the application period is one of the most difficult aspects of the no-LPA scenario for families to manage.

Ongoing Duties of a Deputy vs an Attorney

A deputy appointed by the Court of Protection is subject to significantly more oversight and restriction than an attorney appointed under an LPA. A deputy cannot make decisions that the court has not specifically authorised; they must report annually to the OPG with a detailed account of all income, expenditure, and decisions made; they must notify the OPG of certain significant events (such as a change in the protected person’s living arrangements); and they are supervised by the OPG on an ongoing basis. For large estates, a general supervision regime applies, and the OPG may visit the deputy to review their records.

An attorney under an LPA, by contrast, has a mandate granted by the donor themselves and is subject to much lighter-touch oversight, though they remain under the duties of the Mental Capacity Act and must act in the donor’s best interests. The contrast is stark: the attorney operates on the basis of trust and authority voluntarily granted; the deputy operates on the basis of court-granted authority under court oversight. For more on executor and attorney duties, see our executor duties guide.

Statutory Wills: Can the Court Make a Will on Someone’s Behalf?

One of the most remarkable powers of the Court of Protection is the ability to authorise a statutory will — a will made on behalf of a person who lacks testamentary capacity, approved by the court as being in their best interests. This power is used sparingly, typically where the existing will (if any) is significantly out of date, where the person’s family circumstances have changed dramatically since the will was made (such as a marriage or divorce), or where there is no will and the intestacy result would be clearly contrary to the person’s likely wishes.

An application for a statutory will is expensive and time-consuming, typically costing tens of thousands of pounds in legal fees. The court appoints an independent representative for the protected person and hears evidence from all interested parties. The resulting will is a court order and has the same effect as a will properly executed by the person themselves. The availability of statutory wills is one reason why it is not entirely impossible to plan even where someone has lost capacity — but it is a last resort, not an alternative to making an LPA and a will while capacity remains intact.

Written by Simon Jenkins, SRA 167489, Solicitor at Curtis Legal Limited (SRA 450129). If someone you care for has lost capacity without an LPA in place, call freephone 0800 214 216 for a same-day callback.