Dementia can be challenging—not just for the person experiencing it, but also for families and carers. Dementia affects memory, thinking, and decision-making, gradually reducing a person’s mental capacity. This loss of capacity can make everyday tasks like managing finances, healthcare, and personal decisions increasingly difficult. But what happens if someone has dementia without a Lasting Power of Attorney in place?
Imagine your parent develops dementia, and no one has the legal right to manage their financial or healthcare decisions. Without a Lasting Power of Attorney (LPA), managing their bank account, organising care, or making urgent medical decisions becomes complicated.
In this article, we’ll address exactly what happens if someone has dementia without a Lasting Power of Attorney in place. We’ll clearly outline the alternatives and solutions available, providing practical and reassuring guidance.
Here’s what you’ll learn in this post:
- What a Lasting Power of Attorney is and its importance for dementia care
- What happens legally when no Lasting Power of Attorney exists
- Alternatives to Lasting Power of Attorney, specifically Deputyship
- How Deputyship works, including how to apply
- Who can become a Deputy, and their legal responsibilities
- How the Mental Capacity Act (2005) relates to dementia cases
- Common mistakes families make and how to avoid them
- Real-life scenarios illustrating why early legal planning matters
- Why specialist legal advice is essential for dementia care
What is a Power of Attorney and Why is it Important for Dementia?
A Lasting Power of Attorney (LPA) is a legal document that lets someone else make important decisions on your behalf. This person is known as your Attorney. They can help manage your finances, healthcare choices, and other important matters if you ever lose the ability to decide for yourself.
There are two main types relevant to dementia care:
Enduring Power of Attorney (EPA) – previously used, although now superseded by Lasting Power of Attorneys, existing EPAs remain valid.
Lasting Power of Attorney (LPA) – covers financial affairs, property, health and welfare decisions.
Setting up an LPA early, before dementia progresses, is crucial. You must have sufficient mental capacity to legally appoint an Attorney. Waiting too long risks losing control over who makes important decisions about your health, care, and finances.
Without a valid LPA in place, your family or carers may face significant legal hurdles and delays when trying to manage your affairs. Taking early action helps protect you and your family, providing peace of mind for everyone involved.
What Happens if Someone with Dementia Doesn’t Have Power of Attorney?
If someone loses capacity without a Lasting Power of Attorney (LPA), family members and carers face complicated legal and practical challenges. Without an LPA, no one automatically has the right to manage the individual’s finances, property, or healthcare decisions.
Immediate implications include difficulties accessing the person’s bank accounts, paying bills, and managing property. With regards to healthcare and care home decisions, medical professionals and care providers can’t simply follow family members’ wishes without legal authority.
To resolve this, a person/persons must apply for a Deputyship order from the Court of Protection.
Deputyship: An Alternative When There’s No Power of Attorney
When someone with dementia no longer has the mental capacity to make their own decisions and has nWhen someone with dementia no longer has the mental capacity to make their own decisions and has not set up a Lasting Power of Attorney (LPA), a person connected to them can apply to the Court of Protection to become a Deputy.
Deputyship is granted through the Court of Protection and if granted by the Court, gives the Deputy the authority to manage finances, health, or welfare matters. It is often the only option available once the person with dementia can no longer legally complete an LPA.
The key difference between LPA and Deputyship lies in timing and control:
A Deputy is appointed by the court once capacity is lost.
An Attorney is chosen by the individual while they still have mental capacity.
Types of Deputyship Orders
There are two types of Deputyship orders, depending on the needs of the person with dementia.
Property and Financial Affairs Deputyship
This allows the Deputy to:
- Manage bank accounts
- Pay bills
- Collect pensions or benefits
- Handle property and investments
Example: A son applies to manage his parent’s accounts after they can no longer understand their finances. He uses the Deputyship to pay her care home fees and sell their home to fund long-term care. finances. He uses the deputyship to pay her care home fees and sell her house to fund long-term care.
Personal Welfare Deputyship
This gives the Deputy authority to make decisions about:
- Medical treatment
- Care arrangements
- Where the person lives
Example: A daughter applies for welfare Deputyship to decide on the best care setting for her father after he can no longer make decisions about his own wellbeing.
This type of Deputyship is less common and is usually only granted if there is a dispute about care or no close family available.
Who Can Be a Deputy?
Not everyone can act as a Deputy. Deputies must be over 18 and must be a suitable person to manage and assist the incapacitated person with their finances.
People who can be appointed as a deputy include:
- Family members or close friends
Often the first choice. They know the person well and understand their needs and preferences. - Professional Deputies
These are Solicitors or specialists appointed when no suitable family member is available or where the estate is large or complex. - Local authority representatives
In some cases, a council officer may act as a Deputy, especially if the person with dementia is in state-funded care and has no family.
Can there be more than one deputy?
Yes. The Court of Protection can appoint multiple Deputies, either to act:
- Jointly – all decisions must be made together, which can be slower but ensures shared responsibility.
- Jointly and severally – Deputies can act together or independently, offering more flexibility.
This is common when siblings or close relatives share the responsibility. The Court will decide the most suitable arrangement based on the application and family circumstances.
What Responsibilities Does a Deputy Have?
Once appointed by the Court of Protection, a Deputy takes on serious legal responsibilities. They must always act in the best interests of the person with dementia and follow the rules set out by the Mental Capacity Act 2005.
Typical duties fall into two key areas:
Managing Finances and Assets
A A property and financial affairs Deputy is responsible for:
- Handling day-to-day money management
- Paying bills and managing bank accounts
- Collecting pensions, benefits, or other income
- Managing savings and investments
- Arranging the sale or maintenance of property (with permission, if needed)
They must also keep detailed records of all income, spending, and decisions and complete annual reports to the Office of the Public Guardian.
Health and Welfare Decisions
A personal welfare Deputy (if appointed) may:
- Decide where the person lives or receives care
- Make decisions about daily routines and medical treatment
- Work with doctors and care providers to ensure suitable support
This type of Deputyship is less common and usually only granted if there are disputes or no family members available to act.
Annual Deputy Report
All Deputies must submit an annual report to the Office of the Public Guardian (OPG). This report includes:
- A summary of financial decisions made
- A list of expenses and receipts
- Any major changes in care or personal circumstances
This ensures accountability and protects the rights of the person with dementia.
Limits on Deputy Decision-Making
Deputies do not have unlimited powers. Some decisions require prior approval from the Court of Deputies do not have unlimited powers. Some decisions require prior approval from the Court of Protection or are not allowed at all.
Common limitations include:
- Selling a property – this usually requires Court permission, especially if it’s the person’s main home.
- Making large gifts – Deputies cannot make substantial financial gifts without applying to the Court.
- Changing a Will – Deputies cannot create or amend a Will unless authorised by the Court.
- Making decisions based on personal beliefs – Deputies must remain neutral and act in the person’s best interests, not their own.
These restrictions are in place to protect vulnerable individuals and ensure decisions are fair, reasonable, and legally sound. Deputies should always seek professional advice if they are unsure about what they can or cannot do.
How Does the Mental Capacity Act Affect Someone with Dementia?
The Mental Capacity Act 2005 is the key piece of legislation that protects people in England and Wales who lack the ability to make certain decisions for themselves—often due to conditions like dementia. It outlines how capacity should be assessed and who can legally make decisions on behalf of someone who can’t.
The Act applies to everyone involved in the care or decision-making of someone who may lack capacity, including family members, carers, and professionals. It ensures decisions are made in the person’s best interests, and only when absolutely necessary.
You can read more on the Mental Capacity Act 2005 – NHS Guide for a full overview.
How Is Capacity Assessed?
To determine capacity, the person must be able to:
- Understand the relevant information
- Retain that information long enough to make a decision
- Weigh up the information to reach a decision
- Communicate their choice in some form (speech, sign, writing)
If they cannot do any one of these steps, they may be found to lack capacity.
An assessment must be carried out by a qualified individual, this is usually a GP, social worker, or other healthcare professional.
Why Timing Matters
Dementia is a progressive condition. A person may appear to cope for a time but lose decision-making ability without warning. Once capacity is lost, it is too late to create a Lasting Power of Attorney. This leaves families with fewer options and more legal hurdles.
Acting early ensures the individual’s wishes are respected and allows trusted people to step in legally and responsibly. It also avoids the stress, cost, and delay of applying to the Court of Protection for Deputyship.
Can You Still Set Up a Power of Attorney if Someone Already Has Dementia?
Many families ask: can you get Power of Attorney for someone with dementia? The answer is — it depends on whether the person still has mental capacity.
In the UK, a person can only make a Lasting Power of Attorney (LPA) if they understand:
- What an LPA is
- The decisions they are allowing someone else to make
- The potential consequences of granting this power
If someone has early-stage dementia and still meets this test, it is legally possible to set up a Power of Attorney. However, the process must be handled carefully.
What if it’s Too Late for a Power of Attorney?
If dementia has advanced to the point where the person has lost capacity to create an LPA, someone must apply for Deputyship through the Court of Protection.
The process takes longer, costs more, and includes annual reporting duties for the Deputy.
It’s crucial to act as early as possible – while the person still has the ability to make an LPA. Early legal planning ensures their wishes are respected and avoids unnecessary delay and stress for loved ones.rly legal planning ensures their wishes are respected and avoids unnecessary delay and stress for loved ones.
Common Mistakes to Avoid When Managing Legal Affairs for Someone with Dementia
Caring for someone with dementia is already emotionally and practically demanding. But when legal affairs are handled incorrectly, it can lead to unnecessary delays, added stress, and even financial harm. Here are some of the most common mistakes families make—and how to avoid them.
1. Waiting Too Long to Set Up a Power of Attorney
Mistake: Families often delay creating a Lasting Power of Attorney (LPA), assuming they have more time.
Consequence: If dementia progresses and the person loses capacity, it’s no longer legally possible to make an LPA. You’ll need to apply for Deputyship, which is more complex and expensive.
Avoid it: Set up an LPA as early as possible, ideally at the first sign of memory problems.
2. Misunderstanding Mental Capacity Requirements
Mistake: Assuming someone with dementia automatically lacks capacity, or assuming they still have it without proper assessment.
Consequence: This can lead to invalid legal documents or missed opportunities to create a valid LPA.
Avoid it: Seek a formal capacity assessment if you’re unsure. A solicitor or healthcare professional can help guide the process.
3. Not Getting Legal Advice Before Applying for Deputyship
Mistake: Attempting to apply for Deputyship without understanding the legal steps, costs, or paperwork involved.
Consequence: Incomplete or incorrect applications can cause delays and require resubmission, wasting time and money.
Avoid it: Speak to a solicitor familiar with dementia and the Court of Protection before you start.
4. Assuming Family Members Automatically Have Authority
Mistake: Believing that being a spouse or child gives automatic legal rights to manage finances or make care decisions.
Consequence: Banks, doctors, and care homes cannot act on your instructions without legal authority.
Avoid it: Put the proper legal documents in place—either an LPA or Deputyship—depending on the person’s capacity.
5. Failing to Keep Accurate Records
Mistake: Deputies or attorneys making decisions without keeping a clear record of what they’ve done.
Consequence: You may be challenged by the Office of the Public Guardian (OPG) or family members, and held personally liable.
Avoid it: Keep detailed records of all financial transactions, care decisions, and correspondence. Submit the required annual reports on time.
By avoiding these common errors, you can reduce delays, protect your loved one’s interests, and handle their affairs with confidence and care. DMA Law can provide expert legal guidance to help you get things right from the start.
Why You Need Specialist Legal Support for Dementia Cases
Managing legal affairs for someone with dementia is not straightforward. It often involves strict legal processes, detailed forms, and decisions that can affect someone’s financial security and quality of life. That’s why getting expert legal advice is essential.
Understanding when and how to assess mental capacity is crucial. A specialist Solicitor can help arrange formal assessments, explain the legal test for capacity, and guide families through the decision-making process. This can be vital when deciding whether it’s still possible to set up a Lasting Power of Attorney.
Local, Personalised Support from DMA Law
At DMA Law, we have a long history of helping families across the North East of England manage the legal aspects of dementia care. We provide practical, compassionate advice tailored to your circumstances. If you’re applying for Deputyship, registering a Lasting Power of Attorney, or dealing with the Office of the Public Guardian – our team can help.
Our local knowledge, approachable team, and clear guidance make a complex process feel more manageable. We’re here to support you every step of the way.
Taking the Right Legal Steps for Dementia Care
When someone develops dementia and hasn’t set up a Power of Attorney, it can leave families facing legal and emotional challenges. Without legal authority, managing finances, arranging care, or making important health decisions becomes far more complex.
Deputyship provides a legal route for families, but it involves a formal application to the Court of Protection, extra responsibilities, and ongoing supervision. Understanding the Mental Capacity Act, acting early, and avoiding common mistakes are crucial steps in protecting your loved one’s wellbeing.
Here are the key points covered:
- What happens if someone with dementia doesn’t have a Power of Attorney
- The role of Deputyship as an alternative and how to apply
- Who can be a deputy and what their responsibilities include
- The importance of early action and mental capacity assessments
- How IMCAs support those without close family
- Why professional legal advice can make a real difference
Contact us today and speak with a specialist about your situation. We’ll help you take the right steps to safeguard your loved one’s future.
