Can a relative make decisions without a Lasting Power of Attorney?

Many families face the difficult dilemma of knowing when to step in to help a relative who is struggling to manage their day-to-day life and their financial affairs. At Solomons Solicitors, our team can help answer your questions on whether you can make decisions on behalf of a relative or loved one without a Lasting Power of Attorney in place and the alternatives to a Lasting Power of Attorney. 

Contact our team today to find out how we can help you. 

Can relatives make decisions without a Lasting Power of Attorney?

If you need to make major decisions for an adult relative, you will need the legal authority to do so. That can come through either a Lasting Power of Attorney (LPA) or, if your relative does not have one in place, through the Court of Protection.  

When can a Lasting Power of Attorney be signed?

If you know a relative is beginning to need help it can be difficult to broach the topic of signing a Lasting Power of Attorney if you are concerned that they may think you are trying to take over when all you want to do is offer help and support.

Lasting Power of Attorney solicitors recommend every adult has an LPA document or documents in place as none of us know when we might suddenly or temporarily lose the capacity to make our own decisions. An LPA can cover property and financial decisions or health and welfare. There is no requirement to have both types of LPA.

A Lasting Power of Attorney can only be signed when the person creating the LPA is capable of making their own decisions. If your relative’s capacity is in question a medical opinion can be sought. If capacity has been lost it is not possible to sign an effective LPA and alternate options need to be considered so you can help your relative to manage their affairs.

If you are not sure whether a relative has the capacity to sign an LPA or not, it is best to get advice from a LPA solicitor as delay may mean your relative loses the capacity to sign the LPA documentation. It is quicker and less expensive to sort out a Lasting Power of Attorney whilst capacity is not an issue.

What happens if there is no Power of Attorney and a relative has lost capacity?

If there is no Lasting Power of Attorney in place and a relative has lost capacity, you can apply to the Court of Protection for a deputy to be appointed to make decisions on the relative’s behalf. The Court can only appoint a deputy if capacity has been lost so, unlike a Lasting Power of Attorney, it is a reactionary rather than proactive step.

A deputy can be appointed to make decisions about property and finances and the Court may sometimes also authorise the deputy to make decisions about the relative’s health and welfare. 

What is a deputy?

A deputy is appointed by the Court of Protection to make decisions for a person who does not have the capacity to make their own decisions.  The Court can appoint a family member or solicitor as a deputy but whoever is appointed is under a duty to act in the best interests of the person they are making decisions for.

Acting in a person’s best interests involves asking the person, in so far as possible, what they would like, as well as consulting other family members. For example, the relative may prefer to continue to live in their own home with the assistance of a live-in carer whilst your other family members may think a care home would provide the relative with the best support and care.

As a deputy handles the financial affairs of a vulnerable person there is a requirement to report to the Office of the Public Guardian (OPG) every year about expenditures. In most family situations concerns are not raised as you will be acting in the best interests of your relative in handling their affairs.

If you are worried about a relative’s capacity to make their own decisions but you do not want to be appointed as their deputy, then a panel deputy could be appointed if no other relative is willing to act.

Speak to our Bournemouth-based Lasting Power of Attorney Lawyers today

Solomons Solicitors can help with the preparation of a Lasting Power of Attorney or can advise on a deputy application. For a free initial consultation, call us today on 01202 802 807 or use our online enquiry form.