Capacity, Care and the Court: What Families Can Do When an LPA Is Missing
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Mental capacity can change gradually or without warning. A stroke, dementia, brain injury or serious illness may leave an adult unable to make certain decisions. If they made a lasting power of attorney while they had capacity, the attorneys can usually step in. If they did not, the family may find that legal authority has to come from the Court of Protection.
That can be a difficult discovery. Spouses and adult children often assume they can manage bank accounts, deal with care fees or decide where a parent should live. In law, there is no automatic authority by marriage or close family relationship. The person at the centre remains the decision-maker unless the Mental Capacity Act 2005 provides otherwise, and any substitute decision must be made in their best interests.
What an LPA would have done
A property and financial affairs lasting power of attorney allows attorneys to manage money, pay bills, deal with banks and, where the power permits, deal with property. A health and welfare lasting power of attorney allows attorneys to make decisions about care, accommodation and medical treatment when the person lacks capacity for those decisions. Attorneys must act within the powers granted, follow the Act and keep the person involved as far as possible.
If no LPA exists and the person still has capacity, one can often still be made. Once capacity has been lost for the relevant decision, an LPA cannot be created retrospectively. The fallback is an application to the Court of Protection.
Deputyship: the court route
The Court of Protection can appoint a deputy to make decisions for a person who lacks capacity. Deputyship is most commonly granted for property and financial affairs. Personal welfare deputyship is possible but less common, because welfare decisions are often made through best-interests meetings involving clinicians, carers and family.
A deputy can be a family member or a professional. The court order defines what the deputy can and cannot do. A family deputy may be authorised to manage bank accounts and pay care fees, but may need further permission to sell a home or make substantial gifts. The order is not a blank cheque. It is a supervised authority.
Where families commonly disagree
Disputes often arise over care arrangements: whether a parent should remain at home, move to a care home or receive live-in support. Money is another flashpoint. Who should pay care fees? Should the family home be sold? Who should have access to bank accounts? Adult children may have different views about spending, savings and inheritance.
Property and personal belongings can also cause friction. So can contact and family information. A deputyship order may resolve who has legal authority over finances, but it does not necessarily resolve every family disagreement. Welfare decisions may still require a best-interests process, and the court may become involved if there is serious disagreement or risk.
What the court expects
The Court of Protection expects clear evidence. An application usually requires a capacity assessment, often in the form of a COP3 report, together with medical evidence where appropriate. The court will want to understand the person's needs, their finances, the proposed deputy and the arrangements for managing assets.
Good applications are transparent. They include an asset schedule, details of income and expenditure, a care plan and an explanation of why the order is needed. If the application concerns the sale of a property, the court will expect information about the person's wishes, the purpose of the sale and how the proceeds will be protected. The court also expects the least restrictive option and a plan that serves the person's best interests, not the convenience or expectations of relatives.
Reducing delay and conflict
Delay is common where applications are incomplete or where family members give conflicting accounts. The best way to reduce delay is to prepare a coherent application at the outset. That means obtaining the right medical evidence, explaining the family background, identifying the person's wishes and beliefs, and being clear about what authority is requested.
Conflict can sometimes be reduced through a family meeting, mediation or a clear explanation of roles. Where relations are deeply strained, the court may prefer an independent professional deputy. That is not a punishment for the family. It is a way of protecting the person and ensuring that financial decisions are made with proper records and oversight.
Protecting the person at the centre
The Mental Capacity Act requires that capacity is assumed unless proved otherwise. It requires support for the person to make their own decisions where possible. Any decision made for someone who lacks capacity must be in their best interests and should be the least restrictive option that meets the need.
That principle should guide every family conversation. The question is not which relative should be in charge. It is what the person would have wanted, what their welfare requires and how their money can be used properly for their benefit. Legal advice before accounts are emptied, property is sold or care arrangements are fixed can prevent a difficult situation from becoming a disputed one.
Where no LPA exists, deputyship is often the lawful route. Handled carefully, it can give a family the authority it needs while keeping the person at the centre of the decisions.
