Why being family is not the same as having legal authority
Many parents assume that if they became seriously ill or could no longer manage their affairs, their adult children would simply step in.
Your children may be the people you trust most. They may already help with appointments, paperwork or online banking. But in England and Wales, being your son or daughter does not automatically give them legal authority to make decisions for you.
The same applies to a spouse, civil partner or person described as your “next of kin”. Family members can provide valuable support and may be consulted, but legal authority usually comes from a formal arrangement such as a Lasting Power of Attorney or an order made by the Court of Protection.
You remain the decision-maker while you have mental capacity
Every adult is presumed to have mental capacity unless it is established otherwise. Mental capacity is also decision-specific and time-specific. Someone may be able to make one decision but need help with another, or may be temporarily unable to decide because of illness.
Having an LPA does not mean giving up control. While you can make a particular decision yourself, that decision remains yours.
Your children can still help informally when you agree. They might attend an appointment with you, help organise paperwork or discuss options. However, informal support is different from having authority to act in your name.
What your children cannot automatically do
Without an appropriate legal basis, an adult child does not automatically have the right to:
- access or manage your sole bank accounts;
- pay bills or deal with investments in your name;
- collect your pension or benefits, apart from limited arrangements made for that purpose;
- sell, transfer or manage your property;
- sign contracts or formal documents for you;
- see confidential medical information simply because they are family;
- consent to or refuse medical treatment on your behalf; or
- decide where you should live or what care you should receive.
The exact position depends on the decision and any authority already in place. A joint account, benefits appointeeship or permission to speak to one organisation may help with a limited task, but it does not normally create broad authority over all your affairs.
Does “next of kin” give someone decision-making power?
No. “Next of kin” is widely used by hospitals and care providers as a contact description, but it does not automatically appoint that person to make decisions for an adult.
A next of kin may be asked about your wishes, values and previous statements if you cannot decide for yourself. Their knowledge can be important. But being consulted is not the same as having the final legal authority to decide.
This is one reason it is helpful to distinguish between the person you would like contacted and the person or people you formally appoint as attorneys.
Who makes health and care decisions if there is no LPA?
If you cannot make a particular health or welfare decision and there is no authorised Health and Welfare attorney, the person responsible for the decision must follow the Mental Capacity Act 2005 best-interests framework.
Depending on the issue, this might be a doctor, another healthcare professional or a local authority. They should consider relevant wishes, feelings, beliefs and values and, where appropriate, consult people involved in your care or interested in your welfare.
Your family’s views may therefore be heard, but your children do not automatically take over the decision simply because they are your closest relatives.
Where a serious disagreement cannot be resolved, the Court of Protection can make a decision. The court can also make a one-off order or, in some circumstances, appoint a personal welfare deputy. The authority depends on the court order.
Who manages money and property if there is no LPA?
Banks, pension providers and other organisations must protect your money and personal information. They cannot normally allow an adult child to manage your accounts solely on the basis of the family relationship.
If you have lost the capacity to manage relevant financial matters and no valid authority exists, somebody may need to apply to the Court of Protection. If appointed, a property and financial affairs deputy can make the decisions authorised by the deputyship order.
Deputyship is a formal court process and brings continuing duties. Brooks Wills provides Deputyship and Court of Protection guidance for families who are already in this position.
How a Lasting Power of Attorney changes the position
A Lasting Power of Attorney lets you choose trusted people to act as your attorneys. In this context, an attorney is a person appointed under an LPA; it does not mean a lawyer.
An LPA must be made while you have the mental capacity to make it and must be registered with the Office of the Public Guardian before it can be used.
There are two separate types.
Property and Financial Affairs LPA
This can cover matters such as:
- bank and building society accounts;
- bills, tax and household expenses;
- pensions and benefits;
- investments; and
- property decisions.
Once registered, it may be used while you still have capacity if the LPA permits this and you give your consent. This can be useful if you want practical support without giving up your right to make decisions.
Health and Welfare LPA
This can cover decisions about:
- medical care;
- where you live;
- care and support arrangements;
- your daily routine; and
- life-sustaining treatment, where the LPA gives the attorneys that authority.
A Health and Welfare LPA can only be used for a decision when you lack the mental capacity to make that particular decision yourself.
Why making an LPA is still your choice
An LPA is not about handing every decision to your children. It allows you to decide:
- Who should act. You may choose adult children, a spouse or partner, another relative, a trusted friend or an appropriate professional.
- Whether to appoint more than one attorney. You can specify how they should make decisions, subject to the available appointment options.
- Who should act as a replacement. Replacement attorneys can provide continuity if an original attorney cannot continue.
- What preferences or instructions to include. These can help record how you want particular matters approached, provided they are suitable and valid.
- Which type of LPA you need. You can make either type or both, depending on your circumstances and wishes.
Your attorney must follow the Mental Capacity Act, support you to make your own decisions where possible and act in your best interests when making a decision for you.
Common misunderstandings
“My children already know what I want.”
Knowing your wishes is valuable, but it does not by itself give somebody authority to deal with a bank, care provider or medical team.
“My will appoints my children, so they can act for me now.”
A will takes effect after death. An executor appointed in your will does not gain authority to manage your affairs during your lifetime.
“My child is named as next of kin.”
That may identify who should be contacted, but it is not the same as appointing a Health and Welfare attorney.
“We have a joint bank account, so everything is covered.”
A joint account may allow another account holder to deal with that account, subject to the bank’s requirements. It does not give authority over your sole accounts, property, investments, health or care decisions.
“We can make an LPA if it becomes necessary.”
An LPA can only be made while the donor has the mental capacity to understand and make it. If capacity has already been lost, a Court of Protection application may need to be considered instead.
A practical conversation to have with your family
Talking about LPAs does not need to be difficult. A calm conversation can cover:
- who you trust to act;
- whether they are willing to take on the role;
- how attorneys might work together;
- what matters are particularly important to you;
- where key documents will be kept; and
- who should be contacted if support is needed.
You may decide to appoint your children, but you do not have to. The important point is that the choice is yours and is made while you can consider it carefully.
Planning ahead in Poole, Bournemouth and Christchurch
Many families across Poole, Bournemouth, Christchurch and wider Dorset already support one another informally. An LPA can give trusted people clear authority if more formal help is needed later.
Brooks Wills provides plain-English guidance on both types of LPA, choosing attorneys, replacement attorneys and how the registration process works. We can also help you consider how LPAs fit alongside your will and wider later-life planning.
If you are approaching or have recently entered retirement, you may also find our plain-English guide to wills and LPAs before retirement useful.
Ready to make your choices clear?
Putting LPAs in place means you choose who may act, rather than assuming a family relationship will be enough.
Brooks Wills offers calm, professional support across Poole, Bournemouth, Christchurch, wider Dorset and West Hampshire. We explain each step clearly and help make the process manageable.
Brooks Wills is a member of the Institute of Professional Willwriters and the Society of Will Writers.
Call, message or book a consultation to discuss your circumstances and the next step.
Simplifying legacies, securing tomorrow.
This article provides general information for England and Wales. It is not legal advice. The appropriate arrangements depend on individual circumstances.
Frequently asked questions
Can my adult children manage my bank account if I lose capacity?
Not automatically. They will normally need appropriate legal authority, such as appointment under a registered Property and Financial Affairs LPA or a Court of Protection order. A limited arrangement for one account or benefit does not necessarily cover the rest of your finances.
Can my children make medical decisions as my next of kin?
Being next of kin does not automatically give an adult child legal decision-making authority. Family members may be consulted about your wishes. A Health and Welfare attorney may have authority to make relevant decisions when you lack capacity, within the terms of the registered LPA.
Can I appoint all of my children as attorneys?
You may appoint more than one eligible attorney. You will need to decide how they should act and consider whether the arrangement will work practically. Replacement attorneys may also be appropriate.
Does an LPA mean I lose control of my affairs?
No. You should be supported to make your own decisions whenever you have capacity. A Health and Welfare LPA can only be used for a decision when you lack capacity. A Property and Financial Affairs LPA may be used earlier only where the document permits it and you consent.
What happens if I lose capacity without an LPA?
For financial matters, someone may need to apply to the Court of Protection to become a deputy. For welfare matters, the relevant decision-maker must follow the Mental Capacity Act, and the Court of Protection may become involved in serious or disputed issues.
Can I make an LPA after a dementia diagnosis?
A diagnosis does not by itself determine capacity. The question is whether you can understand, retain, weigh the relevant information and communicate the decision when making the LPA. Where there is uncertainty, appropriate assessment or specialist advice may be needed.
