The Conversation No Family Wants to Have — and Why It Can't Wait
Photo: elderly parent adult child holding hands at home warm light, via i.swncdn.com
In more than two decades of practice, I have sat with many families in the days and weeks after a difficult diagnosis. Almost without exception, the conversation they most dreaded — who will manage Mum's affairs when she no longer can — is the one they left until it was nearly too late.
This article sets out, in plain terms, what a Lasting Power of Attorney is, what happens when someone loses mental capacity without one, and what the Court of Protection can and cannot do. My hope is that it prompts readers to act now, while the decisions are still theirs to make.
What a Lasting Power of Attorney Actually Does
A Lasting Power of Attorney (LPA) is a legal document by which a person — the donor — appoints one or more trusted individuals (attorneys) to make decisions on their behalf. There are two distinct types:
- Property and Financial Affairs LPA — covering bank accounts, bills, property and investments. This can be used, with consent, even while the donor retains capacity.
- Health and Welfare LPA — covering care arrangements, medical treatment and, if wished, life-sustaining treatment decisions. This only takes effect once the donor lacks capacity.
Both must be registered with the Office of the Public Guardian before they can be used, and both require a certificate provider to confirm the donor understands what they are signing and is doing so freely.
The critical point is timing. An LPA can only be made while the donor has the mental capacity to understand it. Once dementia has progressed beyond a certain point, the door closes — and the far more burdensome Court of Protection route becomes the only option.
When There Is No LPA: The Court of Protection
If a person loses capacity without an LPA or an older Enduring Power of Attorney in place, no one — not a spouse, not an adult child — has automatic authority over their finances. Joint bank accounts can be frozen; property sales stall; care fees go unpaid while the family scrambles.
The remedy is an application to the Court of Protection for someone to be appointed as a deputy. A property and affairs deputyship gives the appointed person similar powers to an attorney, but it arrives with:
- Court fees and application costs typically running to well over £1,000 before ongoing supervision fees from the Office of the Public Guardian are added;
- A waiting period commonly of several months, during which the family may have no lawful access to funds;
- Annual reporting obligations that continue for as long as the deputyship lasts.
Health and welfare deputyships are granted only in exceptional circumstances, which makes a Health and Welfare LPA all the more valuable.
The Family Dynamics Nobody Budgets For
Legal process aside, the human element is where matters most often unravel. I have seen siblings fall out permanently over who should act, whether care at home or a residential placement is appropriate, and how money should be spent. Attorneys are legally bound to act in the donor's best interests and to keep finances separate from their own — but clear appointment of two or more attorneys, with guidance written into the LPA itself, prevents a great deal of grief.
Appointing a professional attorney or specifying a substitute is also worth considering where family relationships are strained.
Practical Steps to Take This Month
- Have the conversation now. Frame it around the parent's wishes, not their decline. Most people are relieved to be asked.
- Make both LPAs through a solicitor, particularly where there are blended families, business interests or overseas assets.
- Review existing documents. Enduring Powers of Attorney made before October 2007 remain valid if properly drafted, but are worth checking.
- Consider a will review at the same time. Capacity requirements for wills are different, and a diagnosis does not automatically prevent one being made — but delay narrows the window.
- Keep records. If you anticipate family disagreement, contemporaneous notes of the donor's wishes are invaluable.
A Closing Word
None of this is pleasant to think about. But the alternative — an urgent Court of Protection application while care fees mount up and siblings stop speaking — is far worse. A modest investment in properly drafted LPAs today is one of the kindest things a family can do for itself.
If you would like to discuss Lasting Powers of Attorney or a Court of Protection application, Alan Curtis Legal is happy to help. The best time to put these arrangements in place is while they are simple; the second-best time is now.
