What Happens if Someone Loses Capacity Without a Power of Attorney

If someone you care about has lost the ability to make decisions — and there’s no Power of Attorney in place — it may be too late to set one up. In that situation, you may need to apply for a Guardianship Order to be able to act on their behalf.

This guide explains what Guardianship is, when it’s needed, and what to expect from the process.

Why This Matters – A Real Example

One of our colleagues at Hastings went through this herself when her partner had a sudden and unexpected stroke. Despite working in legal services for years, she found herself facing the reality of Guardianship — right in the middle of a stressful and uncertain time.

With no Power of Attorney in place, important decisions were delayed and extra legal steps had to be taken. Thankfully, he has since returned home and is recovering well — but the experience was a powerful reminder that these situations can arise without warning, even in otherwise healthy and capable households.

What Is Guardianship?

A Guardianship Order is a legal appointment made by the Sheriff Court. It gives someone the authority to make decisions for an adult who no longer has the capacity to do so themselves — usually due to illness, injury, or a long-term condition.

Guardianship can cover:

• Welfare powers – care, medical decisions, living arrangements
• Financial powers – managing money, paying bills, selling property

You can apply for one or both, depending on what’s needed.

When Is It Needed?

Guardianship is usually needed when:

• The person has lost capacity
• There is no valid Power of Attorney in place
• Decisions need to be made about money, care, or housing
• Informal arrangements are no longer enough

It often follows a diagnosis such as dementia, stroke, or another condition that affects decision-making.

Who Can Apply?

You don’t need to be a solicitor or close relative — but you must:

• Be over 16
• Be willing and suitable to take on the role
• Show that Guardianship is necessary

Applications are usually made by family members or carers. More than one person can apply to act jointly.

What’s Involved in Applying?

It’s a formal legal process. You’ll need:

• Two medical reports confirming incapacity
• A report from a mental health officer (MHO)
• A written application to the Sheriff Court
• A hearing to decide what powers should be granted

It can take several months to complete, especially if urgent decisions are already needed.

What Does It Cost?

There are legal and medical costs involved, plus ongoing duties such as record-keeping and reporting. However, Legal Aid may be available depending on the adult’s financial situation. We can help you explore what support applies

How We Can Help

If you’re in this position — or worried it might happen — we understand just how difficult it can be.

At Hastings Legal, we’ve supported many families through the Guardianship process with clarity, sensitivity and care. We’ll guide you through the legal steps and help you get the right authority in place, so you can focus on looking after the person who needs you.

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