Many people assume that if they become unable to manage their own affairs, a spouse, child or close relative can automatically step in and help. Unfortunately, this is one of the most common misconceptions surrounding mental capacity and decision-making.
In this episode of Whitehead Monckton’s HeadNotes podcast, succession law specialists Katie Broadfield and Ella Beck discuss what happens when someone loses the ability to make decisions for themselves, the difference between a lasting power of attorney and a deputyship, and why planning ahead can save families significant stress, delay and expense.
The discussion provides practical guidance for individuals planning for the future, families supporting a loved one who has lost capacity, and parents of vulnerable young adults who may require ongoing support with financial or welfare decisions.
A lasting power of attorney is a legal document that allows you to appoint trusted individuals to make decisions on your behalf if you become unable to do so yourself.
Importantly, the document must be created while you still have the mental capacity to understand the decisions you are making.
There are two main types of lasting power of attorney:
A property and financial affairs power of attorney allows your attorney to manage matters such as bank accounts, savings in building society accounts, bills and other financial matters.
A health and welfare power enables your chosen attorney to make certain health and care decisions if you are unable to make them yourself.
Because you decide who will act for you, a lasting power of attorney gives you control over who will manage your affairs in the future.
“The message is you should make lasting powers of attorney if you can.” – Katie Broadfield
A deputyship becomes necessary when a person has already lost capacity and can no longer make a lasting power of attorney.
In these circumstances, an application must usually be made to the Court of Protection for a deputyship order.
The deputy is then given legal authority to make decisions for someone who can no longer manage their own affairs.
“A deputyship is a court order which gives somebody authority to manage the affairs of somebody else when they’ve lost the mental capacity to do it themselves.”
Deputyships are commonly needed when a person develops dementia, suffers a serious accident, or has never had the capacity to manage their own affairs independently.
The podcast highlights several situations where a deputyship may be required. These include:
While many people associate deputyships with older individuals, they can affect people of any age. Parents of vulnerable young adults may also need to consider whether a deputyship application will be required once their child reaches adulthood.
The most common form of deputyship relates to financial affairs. A financial affairs deputyship allows a deputy to manage matters such as:
Health and welfare deputyships are much less common. The Court of Protection is generally reluctant to grant ongoing authority for health and welfare decisions unless there are exceptional circumstances. Instead, the court may make decisions on specific issues as they arise.
Applying for a deputyship can be a detailed and sometimes daunting process.
Applications require extensive information about the person’s finances, assets, income and circumstances. Evidence must also be provided to show that the individual lacks the mental capacity to make the relevant decisions themselves.
A recent capacity assessment is usually required as part of the application. The court will carefully review:
The application is then submitted to the Court of Protection for consideration.
One challenge families often face is obtaining information before they have the legal authority to access it. This can make gathering the necessary documents particularly difficult.
Many people believe that a spouse, partner or child automatically has permission to manage their affairs if they lose capacity.
As discussed in the podcast, this is not the case.
Without a valid power of attorney or deputyship order, relatives generally have no automatic legal power to deal with finances, access accounts or make decisions on behalf of another adult.
This often comes as a surprise to families who assume that being next of kin provides authority. In reality, formal legal arrangements are usually required.
The process can take several months and, in some cases, considerably longer. The speakers explain that applications can sometimes take up to a year depending on the complexity of the circumstances and the workload of the court.
During this period, families may face practical difficulties if access to money or accounts is restricted. This is one reason why making a lasting power of attorney before it is needed is often strongly recommended.
In some situations, there may be no suitable family member available to act as deputy. Alternatively, relatives may feel unable to take on the significant responsibilities involved.
A professional deputy, such as a solicitor, can be appointed to manage affairs on behalf of the individual. Deputies are subject to ongoing supervision and must comply with strict requirements.
These responsibilities may include:
The role carries significant responsibility and accountability.
Planning for the future can feel overwhelming, particularly when considering the possibility of losing capacity or supporting a loved one who has already lost the ability to manage their own affairs.
Our succession specialists can provide practical legal advice on lasting powers of attorney, deputyship applications and Court of Protection matters.
We can assist with:
Taking steps today can help protect your interests and provide reassurance for those closest to you.
If you would like advice regarding a lasting power of attorney or deputyship, please contact our succession team.
A power of attorney is a legal document that allows you to appoint someone you trust to make decisions on your behalf if needed in the future.
Deputyship orders are granted by the Court of Protection in England and Wales.
No. Marriage alone does not provide automatic legal authority to manage another person's financial affairs. Formal legal arrangements are usually required.
Katie Broadfield
Director in the Succession team at Whitehead Monckton and an experienced professional deputy advising clients on Court of Protection and deputyship matters.
Ella Beck
Solicitor in the Succession team at Whitehead Monckton, advising on deputyship applications and the day-to-day management of deputyship clients’ affairs.
Explore more episodes from the HeadNotes Legal Podcast, or learn more about our Succession services relating to lasting powers of attorney, Court of Protection matters, deputyships, wills and estate planning.
