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My loved one can’t make their own decisions anymore – what do I do?

Published on 9 April 2024 | Modified on 9 April 2024

Written by Stacey Bennett

Wills & Probate

Personal law solicitors

Many people rely on their loved ones, whether their family or their friends, for all sorts of day to day tasks. This might be simply to assist one in getting about outside the house if getting a bit frailer with old age, or perhaps dealing with paperwork when that’s something they’ve never enjoyed.

A lot of the time, this help can be provided quite casually – however, certain types of help, or decision making, cannot be done without proper legal authority. This might be anything to do with finances (including using a bank card on behalf of that person), or speaking to medical professionals on their behalf.  

If the person you’re helping reaches a stage where they can no longer make these decisions for themselves– then you might find helping them a bit more challenging. This often happens when someone’s mental capacity is affected by either a long term condition that has developed (such as dementia) or something sudden (such as a stroke, or an accident).

If someone has not got the mental capacity to make a decision – you need to have formal authority in order to make that decision for them.

There are 2 main ways you can have authority to make decisions on behalf of someone else.

Power of Attorney

If you are appointed an attorney – this more often than not will allow you to act on that persons behalf. There are 2 types of power of attorney that might be in place:

Enduring Power of Attorney (EPA) – if a person no longer has capacity to manage their finances – you can register an EPA with the Office of the Public Guardian (OPG) so that you can manage their affairs for them. A solicitor can advise you on this process, and can let you know if you are appointed alongside anyone else, and if so, if you are appointed jointly or jointly and severally. No new EPAs can be created since 2007 – but existing EPAs can still be used.

Lasting  Power of Attorney (LPA) – it might be that the person you look after has set up an LPA for financial decisions, and a separate one for health decisions. These replaced EPAs in 2007.

The financial LPA can only be used if it is already registered with the OPG – and can often also be used (with the person’s consent) even if they have capacity to make those decisions for themselves.

The health LPA can only be used if it is both already registered and if that person can be shown to longer be able to make those decisions for themselves.

As with the EPA – a solicitor can advise you as to which LPAs are in place, whether they need registering, and if you are appointed alongside anyone else.

It is important to remember that a Power of Attorney can only be set up while the person in question has mental capacity. if a Power of Attorney is not in place, and that person no longer has the capacity to implement one, then you will have no choice but to apply to the Court of Protection to obtain authority to make decisions on their behalf.

Court of Protection

The Court of Protection (CoP) is a branch of the court system specifically set up to help protect vulnerable people.

If you wish to assist someone who lacks capacity to deal with their finances, property, or health and care decisions but does not have a Power of Attorney of either kind in place, the Court of Protection is the only option available to you.

You can apply to be appointed as that persons ‘Deputy’ – either solely, or jointly with another (either on a joint basis or jointly and severally).

The CoP can consider appointing someone to be a financial Deputy, or a Deputy for health decisions.

For health decisions, the CoP tend to prefer to only get involved when specific medical or care decisions need to be made – though it is possible to be appointed as a Deputy for general health decisions in some circumstances.

A deputy for financial decisions is a bit like being an attorney – in that you can deal with their finances as if you were that person. However, there are certain restrictions and additional requirements that make it somewhat more onerous. This includes requiring additional permissions from the CoP to sell or buy property, and the need to submit accounts to show how that person’s money has been spent every year.

What next?

For advice on what you can do to ensure you are lawfully assisting your loved on with the right authority, please do get in touch.

Tel: 01270 613939


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