One of the most difficult conversations families face is when a loved one becomes unwell and there are concerns about their ability to make decisions for themselves.

A recent enquiry highlighted a situation that is becoming increasingly common. A wife contacted me because her husband was seriously unwell and she wanted to put Lasting Powers of Attorney (LPAs) in place so she could help manage his affairs if needed.

On the surface, this sounds straightforward. In reality, when mental capacity is in question, the situation can become significantly more complex.

What Is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document that allows someone (the donor) to appoint trusted individuals (the attorneys) to make decisions on their behalf.

There are two types:

1. Property and Financial Affairs LPA – covering bank accounts, bills, investments, and property.
2. Health and Welfare LPA – covering care decisions, medical treatment, and living arrangements.

LPAs are one of the most important legal safeguards a person can put in place. They allow individuals to choose who they trust to act for them if they lose mental capacity in the future.

The Essential Requirement: Mental Capacity

To make a valid LPA, the donor must have sufficient mental capacity at the time the document is signed.

This means they must understand:

• What an LPA is;
• The powers they are giving to their attorneys;
• When those powers can be used;
• The potential consequences of the arrangement.

A certificate provider—usually a solicitor, doctor, or someone who has known the donor for at least two years—must confirm that the donor understands the document and is not under pressure.

If there is any doubt, professional assessment may be needed.

When Capacity Is Uncertain

When a person is seriously ill, suffering from dementia, experiencing delirium, or under heavy medication, their ability to understand and make decisions may be impaired.

In these cases, solicitors must be satisfied that the donor has capacity. If there is uncertainty, medical evidence is often required.

Sometimes the outcome is encouraging: despite illness, the individual still understands enough to proceed with the LPA.

However, if they do not have capacity, an LPA cannot legally be created.

If Capacity Has Been Lost: Deputyship Is the Alternative

If the person no longer has mental capacity, the family must apply to the Court of Protection for a Deputyship Order.

A deputy is appointed by the court to make decisions on behalf of the person who has lost capacity.

The process usually involves:

• Completing detailed application forms;
• Providing medical evidence of incapacity;
• Paying court fees;
• Obtaining a security bond;
• Waiting for the court to process the application.

Why Deputyship Can Be Challenging

Deputyship is often far more time-consuming and expensive than preparing LPAs.

Families should be aware of:

Long Delays

Court processing times can be several months, and in some cases longer depending on complexity and court workload.

Higher Costs

There are application fees, annual supervision fees, and potential legal costs.

Ongoing Reporting

Deputies must keep records and report regularly to the Office of the Public Guardian.

Reduced Flexibility

The court decides who is appointed and may restrict what decisions can be made.

The Emotional Impact on Families

For spouses and children, this situation is particularly stressful.

They are already coping with a loved one’s illness, yet may find they are unable to:

• Access bank accounts;
• Pay care fees;
• Sell property;
• Manage investments;
• Make important financial decisions.

Many people assume that being married automatically gives a spouse legal authority to act. Unfortunately, this is not the case.

Without an LPA or Deputyship Order, financial institutions and other organisations may refuse to take instructions.

The Importance of Acting Early

This case serves as a powerful reminder that LPAs should be put in place before they are urgently needed.

Once mental capacity is lost, the opportunity to create an LPA is gone.

By acting early, individuals can:

• Choose who they trust;
• Avoid court involvement;
• Reduce costs;
• Minimise delays;
• Provide peace of mind for their family.

Can an LPA Still Be Made?

If there is any doubt about capacity, it is still worth seeking professional advice as soon as possible.

Capacity is decision-specific and can fluctuate. Some individuals may still be able to understand and sign an LPA despite illness, particularly if assessed at the right time.

Prompt action can make the difference between a relatively straightforward LPA and a lengthy Deputyship application.

Final Thoughts

No family wants to face a crisis while also navigating legal obstacles.

If a loved one is unwell and there are concerns about mental capacity, it is vital to obtain specialist advice without delay.

Where capacity remains, an LPA can be prepared and registered to protect the family’s future.

Where capacity has been lost, Deputyship may be the only option—but families should be prepared for a more involved and time-consuming process.

Planning ahead is one of the most valuable gifts you can give to those closest to you.

(E) enquiries@advaloremgroup.uk (T) 01908 219100 (W) advaloremgroup.uk