Who is the decision maker if you lose capacity?

Many believe that if they were to fall ill and lose capacity, their family can automatically make decisions about their care and finances. However, this is not the case, as, without a nominated Power of Attorney, you have little or no say in decisions regarding your loved ones.Nominate a power of attorney before its too late

If a person becomes mentally incapacitated, perhaps as a result of a severe accident, health trauma or the onset of dementia, then, without the appropriate measures in place, your next-of-kin cannot automatically make decisions on your behalf. If that person has savings or property requiring management, their family would have to apply to the Court of Protection to obtain an equivalent power.

Without the necessary paperwork, the court will have the power to decide if someone lacks mental capacity, and if they do, they can decide on an appropriate course of action to deal with that person’s property, affairs and personal welfare. The court has the power to appoint a ‘deputy’ (previously called a receiver) to make decisions on welfare, healthcare and financial matters as determined by the court. Deputies are only appointed if the court cannot resolve the issues by making a one‐off decision. 

Often, family circumstances are not straightforward, so it is important to consider the practicalities. Applying to the Court of Protection can be costly and takes 12 months or more when, in the meantime, no one has access to the person’s money.

You need to organise a Power of Attorney

What is a Power of Attorney?

A power of attorney is a legal document where an individual, known as ‘the donor’, appoints someone, known as ‘the attorney’, to deal with his or her affairs. An ordinary power of attorney is a temporary appointment.  An ordinary power of attorney could be used during a hospital stay or holiday for instance. This can only be used whilst the donor remains mentally capable of managing his or her affairs.

What is a Lasting Power of Attorney?

A lasting power of attorney (LPA) is a complex type of power which remains valid even if the donor becomes mentally incapable. There are two types:

  1. Property and Affairs

The Property and Affairs LPA will allow your attorney to make decisions on your behalf about your property and affairs, including paying your bills, collecting your income and benefits or selling your house subject to any restrictions or conditions.

  1. Health and Welfare 

The health and welfare LPA will allow your attorney to make decisions on your behalf about your personal welfare, including whether to give or refuse consent to medical treatment on your behalf and deciding where you live.

Who can I choose to act as my attorney?

The appointed attorney should be someone that you completely trust. A relatively young person will usually be happy to choose his/her spouse or partner as their attorney. Older people may wish to appoint their children or other family members from the next generation as attorneys. If there are no suitable family members, a professional person such as a solicitor can be assigned. The attorney must be aged 18 or over, must not be bankrupt or subject to an interim bankruptcy order. You can nominate more than one attorney, but if this is the case, there should be elections to decide if all attorneys have to act together or whether any one attorney can act independently without consulting the other named attorneys.

Under both types of LPA, a replacement attorney can be appointed to replace an attorney who is no longer able to act or does not wish to make decisions on your behalf. For example: choosing a spouse as an attorney, with the children as a replacement if your spouse should die or can no longer act on your behalf.

When should I appoint a Power of Attorney?

Now! You are never too young to get a power of attorney organised. You never know what lies around the corner. Hopefully, you’ll never need to use it; however, if the unthinkable happens, then you will be content knowing your estate and general welfare is in good hands.


Whilst it is not always appropriate to apply for immediate registration of your LPA, it is normally suggested that this is done at the same time as the creation. The Office of the Public Guardian (OPG) is often taking 20 weeks or more to register the documents.

 A registration fee of £82 per LPA is payable to the OPG. Make, register or end a lasting power of attorney >

Once registered the LPA then stays dormant until needed when capacity is lost. 

You can carry out this process yourself without legal advice. However it can be a wise investment of time and money to involve a solicitor.

The advantages of using a solicitor to arrange your LPA

A solicitor can help you consider all relevant matters and identify any complications. They have the experience to guide you through the legal process and can alert you to possible pitfalls, for example; who might be most appropriate to name as attorneys and how attorneys might best act based on your circumstances.

You can download the relevant forms online and draft one on your own, but there are a number of reasons why taking professional advice could be a less worrisome route. For instance; making one mistake or omission, no matter how small, could invalidate the entire LPA. 

Often, family circumstances are not straightforward, so it is important to consider the practicalities of how attorneys will act and also, ensure that the donor of the powers (along with other family relations) is properly protected. 

Getting the right advice now could save you money and anguish if your affairs are not as straightforward as you had thought.

If you do not already have a trusted solicitor Talbots will be delighted to help. Talbots have acted for medical professionals and indeed clients of Legal & Medical for some years and have experience of many of the specific issues you might face. Meetings can be held face to face or via Zoom so proximity to our offices and ability to attend a face to face meeting is not a necessity. 

Guest Author: Richard Stone, Director in the Trusts & Estates department of Talbots law.

Solicitors in West Midlands – Talbots Law

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