Hero subtitle: Losing capacity does not automatically give your family authority to step in, so it helps to understand what happens if no LPA is in place.
If you became unable to make a particular decision for yourself, you might assume that your spouse, partner or adult children could simply take over. In England and Wales, that is not automatically the case.
A Lasting Power of Attorney (LPA) allows you to choose trusted people to make certain decisions for you. It must be made while you have the mental capacity to make it and registered with the Office of the Public Guardian before it can be used.
If capacity has already been lost and there is no valid LPA or other relevant authority, the position can be more complicated. Depending on the decision that needs to be made, the Court of Protection may need to become involved.
Mental capacity is decision-specific
“Losing mental capacity” does not necessarily mean that a person can no longer make any decisions at all. Capacity is considered in relation to the particular decision at the time it needs to be made.
A person may, for example, be able to make some everyday decisions while being unable to understand or weigh up a more complex financial decision. The starting point is to support the person to make their own decision wherever possible.
Can your family automatically manage your money?
No. Being somebody’s spouse, partner, son or daughter does not by itself give you general legal authority to manage their bank accounts, investments or property.
If a person lacks capacity to manage relevant financial matters and there is no attorney or other suitable authority already in place, an application to the Court of Protection may be needed. The court can appoint a property and financial affairs deputy to make the decisions authorised by the deputyship order.
This can include matters such as paying bills, managing money or dealing with property, depending on the authority granted by the court.
What about health and care decisions?
The position is different from simply giving a relative a general right to decide. Decisions for a person who lacks capacity must be approached under the Mental Capacity Act framework and made in their best interests.
The Court of Protection can make decisions about welfare matters and can appoint a personal welfare deputy in appropriate cases. Government guidance notes that personal welfare deputies are usually appointed only in particular circumstances, such as where there is doubt that decisions will be made in the person’s best interests or where an ongoing decision-maker is needed for a specific issue.
A Health and Welfare LPA, by contrast, lets you choose in advance who you want to make the decisions covered by the LPA if you later lack capacity to make them yourself.
What is the Court of Protection?
The Court of Protection deals with financial and welfare matters for people who cannot make a particular decision when it needs to be made. It can decide whether a person has capacity for a particular decision, make a one-off decision, or appoint a deputy to make certain ongoing decisions.
A deputy does not receive unlimited authority. The court order sets out what the deputy can and cannot do, and deputies have continuing responsibilities when acting for the person concerned.
If your family is already dealing with loss of capacity and no LPA is in place, our Deputyship and Court of Protection guidance explains the next steps in more detail.
Why an LPA changes the position
An LPA allows you to make the choice while you still have capacity. You decide who should act, whether to appoint one or more attorneys, whether replacements are needed and, within the rules of the document, what preferences or instructions should guide them.
There are two separate types of LPA:
- Property and Financial Affairs LPA — covering matters such as bank accounts, bills, pensions and property.
- Health and Welfare LPA — covering matters such as care, medical treatment and where you live. This type can only be used for a decision when you lack capacity to make that decision yourself.
A Property and Financial Affairs LPA may be used once registered while you still have capacity if the LPA allows it and you give permission. This can be useful where you want practical help without handing over your own decision-making.
Can you make an LPA after capacity has been lost?
You must have mental capacity when you make an LPA. If a person can no longer understand and make the relevant decision required to create one, an LPA cannot simply be put in place retrospectively.
That is why an LPA is fundamentally a planning document. It is designed to be arranged while you are able to choose your own attorneys and decide how you want the arrangement to work.
Does having no LPA always mean deputyship?
Not necessarily. The right route depends on what decision is required. The Court of Protection can make one-off decisions as well as appoint deputies, and some limited matters may be dealt with through other forms of authority. For example, government guidance distinguishes managing somebody’s benefits as an appointee from acting as a deputy.
The important point is that a family relationship alone should not be treated as a substitute for legal authority.
Planning ahead in Poole, Bournemouth and Christchurch
LPAs are often discussed in the context of dementia or later life, but loss of capacity can also follow illness or injury. Planning in advance means that you can choose the people you trust while the decision remains yours to make.
Brooks Wills helps individuals and families across Poole, Bournemouth, Christchurch and wider Dorset understand the two types of LPA, choose attorneys and replacements, record appropriate preferences and instructions, and complete the signing and registration process.
You can read more about our Lasting Power of Attorney service or view our current LPA fees.
Frequently asked questions
Does my spouse automatically have power of attorney?
No. Marriage or a civil partnership does not itself make somebody your attorney. An attorney needs appropriate legal authority, such as a valid LPA, for the decisions covered by it.
Can my children access my bank account if I lose capacity?
Not simply because they are your children. Banks and other organisations require appropriate authority. Where no suitable authority exists and you lack capacity for the relevant financial decisions, a Court of Protection application may be necessary.
What is the difference between an attorney and a deputy?
An attorney under an LPA is chosen by you while you have capacity. A deputy is appointed by the Court of Protection after a person lacks capacity for the relevant decisions. A deputy’s powers are governed by the court order.
When should I make an LPA?
An LPA must be made while you have mental capacity. Many people arrange one as part of ordinary later-life and estate planning rather than waiting for a health crisis.
What to do next
If you are considering an LPA, the useful first step is to think about who you would trust to act, whether you want one or both types of LPA and whether replacement attorneys would be sensible.
If capacity has already been lost, the question changes: you may need to establish what authority already exists and whether a Court of Protection application is required.
Brooks Wills can help you understand the appropriate route. Find out more about our LPA service or contact us to arrange a consultation.
This article provides general information for England and Wales and is not a substitute for advice on individual circumstances. Important factual points were checked against current GOV.UK guidance on Lasting Powers of Attorney and the Court of Protection before drafting.
