Many people assume that a spouse, partner or adult child can automatically manage their money and make decisions for them if they become unwell. In England and Wales, that is not the case. However, without a lasting power of attorney (LPA), no one has automatic legal authority to act for an adult who can no longer make their own decisions.
This article explains what family members and others can and cannot do in that situation, and what you can do now to avoid problems later.
Written by Xinlei Zhang, Senior Associate Solicitor
Capacity comes first
Under the Mental Capacity Act 2005, every adult is presumed to have mental capacity unless it is shown otherwise. Capacity is assessed for each decision at the time it needs to be made. Someone may be able to decide what to eat but not be able to understand the risks of selling their home.
While you have capacity, you can make your own decisions, and you can appoint others to help. The difficulty arises when capacity is lost, for example through dementia, a stroke or a serious accident.
What family members cannot do
Even a husband, wife or civil partner has no automatic right to:
- access or manage your bank accounts held in your sole name
- sell or remortgage your property
- deal with your pension, investments or insurance
- make financial decisions on your behalf
- instruct professionals such as solicitors or accountants for you
Banks and other organisations will normally refuse to deal with someone who does not have formal legal authority.
What is still possible without an LPA
Joint accounts and existing arrangements. If you hold a joint bank account, the other account holder can usually continue to use it, depending on the bank’s terms. This does not cover accounts or assets held in your sole name. Direct debits and standing orders that were already set up will normally keep running.
Third-party mandates. Some banks allow a person with capacity to give a trusted person limited access to an account. These arrangements are generally intended for use while you have capacity, and a bank may stop honouring them once it knows you have lost capacity. They are not a substitute for an LPA.
Benefits appointees. If you receive state benefits, including the State Pension, the Department for Work and Pensions can appoint someone to manage those benefits for you. An appointee can deal only with the benefits, not your wider finances.
Day-to-day care and treatment. The Mental Capacity Act allows carers, family members and professionals to do reasonable things in connection with someone’s care or treatment, provided they believe the action is in that person’s best interests. For medical treatment, doctors make decisions in the patient’s best interests and are expected to consult family and others close to the person. Family members do not have the power to consent to or refuse treatment on the person’s behalf unless they hold a health and welfare LPA.
Applying to the Court of Protection
If there is no LPA and the person has lost capacity, the usual route is an application to the Court of Protection. The court can:
- appoint a deputy, usually for property and financial affairs. Deputies for health and welfare decisions are appointed only in limited circumstances.
- make a one-off order about a specific decision, such as selling a property.
- authorise a statutory will where the person cannot make a valid will themselves.
This route has drawbacks compared with an LPA:
- Time. Applications can take several months. Urgent applications are possible in some circumstances, but you should not rely on that.
- Cost. Court fees apply, and deputies usually have to pay for a security bond and ongoing supervision fees. Fees are set by the court and the Office of the Public Guardian and change from time to time, so check the current figures on GOV.UK.
- Oversight. A deputy is supervised by the Office of the Public Guardian, must keep accounts and submit annual reports, and may need court approval for certain decisions.
- Choice. The court decides who the deputy will be. It may not be the person you would have chosen.
- Control. A deputy’s powers are set by the court order and are usually narrower than those given under an LPA.
What you can do now
If you still have capacity, you can put arrangements in place before they are needed:
- Make lasting powers of attorney. There are two types: one for property and financial affairs, and one for health and welfare. You choose who acts for you and can set conditions. An LPA must be registered with the Office of the Public Guardian before it can be used, and registration takes time, so it is better to do this early.
- Consider an advance decision. This lets you refuse specified medical treatment in advance. It has to meet legal requirements, particularly for refusing life-sustaining treatment.
- Write down your wishes. A statement of your preferences for care is not legally binding but must be taken into account when decisions are made in your best interests.
- Review your will. An LPA ends on death, and a will deals with what happens afterwards. Both matter.
You can make an LPA only while you have capacity to understand what you are signing. If capacity has already been lost, the Court of Protection route is likely to be the only option.
Key points
- No one, including a spouse or adult child, automatically has legal authority to manage another adult’s affairs.
- Joint accounts, benefits appointeeships and day-to-day care decisions offer limited help but do not replace an LPA.
- A Court of Protection application is possible but is generally slower, more costly and more restrictive than an LPA.
- An LPA can only be made while you have capacity, so the best time to arrange one is before you need it.
Speak to a solicitor
Every situation is different. An LPA is an important safeguard, helping to ensure that decisions about your health, welfare, property and finances are made by people you trust and, so far as possible, in accordance with your wishes. Loss of capacity can occur unexpectedly and at any age, so putting an LPA in place in advance can provide valuable reassurance. If you expect your health to deteriorate, it is particularly important to make arrangements as early as possible.
We offer fixed fees. Our standard fees are:
- One LPA – £750 plus VAT
- Two LPAs (one person making both types) – £1,050 plus VAT
- Four LPAs (a couple making both types at the same time) – £1,680 plus VAT
Additional charges may apply where instructions are more complex, depending on your circumstances. A registration fee of £92 per LPA is also payable to the Office of the Public Guardian.
If you want to make a lasting power of attorney, or you are worried about a relative who has lost capacity, our team at Lisa’s Law Solicitors can explain the options and the next steps.
Find out more about our Lasting Powers of Attorney service here and contact us to arrange an initial conversation.
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