When a loved one becomes unable to manage their own affairs, many people assume that a close relative can automatically step in and make decisions for them. However, the legal position is often more complicated.
A common question families ask is whether they can make decisions without power of attorney. In many situations, the answer is no, at least not without certain legal authority or involvement from professionals.
At AFG Law, we regularly advise families dealing with situations where someone has lost mental capacity due to illness, dementia, or a brain injury. Understanding what decisions can and cannot be made without formal authority is important for avoiding delays, disputes, and uncertainty.
What Happens When Someone Loses Mental Capacity?
A person may lose mental capacity if they are unable to understand, retain, or weigh information needed to make a decision.
This can happen for many reasons, including:
- Dementia
- Stroke
- Learning disabilities
- Serious illness
- A brain injury
- Mental health conditions
Mental capacity is assessed on a decision-specific basis. Someone may still be able to make simple day-to-day choices but struggle with more complex financial or healthcare decisions.
Once a person has lost mental capacity, questions often arise about who can make decisions for them.
Can a Family Member Make Decisions Without Power of Attorney?
A family member does not automatically gain the legal power to make all decisions simply because they are related to the individual.
This is one of the most misunderstood areas of the law. Many people believe that spouses, children, or other relatives can automatically access bank accounts, sell property, or make healthcare decisions. In reality, this is not always the case.
Whether someone can make a decision on behalf of another person depends on:
- The type of decision
- Whether a lasting power of attorney (LPA) exists
- Whether the person has capacity at the time
- Whether professionals or the court of protection need to be involved
What Decisions Can Family Members Make Informally?
In practice, family members are often involved in day-to-day care and support without formal legal authority.
For example, relatives may help with:
- Shopping and household tasks
- Arranging care appointments
- Supporting communication with healthcare professionals
- Helping manage daily routines
Healthcare professionals and carers will usually consult close friends and relatives when making decisions in someone’s best interests. However, this informal involvement does not necessarily give a relative the authority to make major financial or legal decisions.
What Happens Without a Power of Attorney?
A lasting power of attorney (LPA) allows someone to appoint trusted individuals to make decisions if they later lose capacity.
There are two main types:
- Property and financial affairs LPA
- Health and welfare LPA
Without an LPA in place, relatives may face difficulties managing important matters.
For example, without authority, a family member may not be able to:
- Access bank accounts
- Sell property
- Manage investments
- Make certain long-term care decisions
This often comes as a surprise to families, particularly during already stressful situations.
Property and Financial Affairs Decisions
Financial matters are often the area where families encounter the greatest difficulty.
Without authority, relatives usually cannot deal with:
- Bank accounts
- Paying bills from someone else’s funds
- Property sales
- Investments or pensions
To gain formal authority, it may be necessary to apply to the court for a deputyship order through the Court of Protection. A deputy appointed for property and financial affairs can then manage finances on behalf of the individual.
At AFG Law, we regularly assist families making these applications, particularly where urgent access to finances is required.
Medical Treatment and Care Decisions
Decisions about medical treatment are handled differently.
Doctors and healthcare professionals can make treatment decisions in a person’s best interests where they lack capacity. Family members are usually consulted, but they do not automatically have the final say unless they hold a valid health and welfare LPA.
Professionals must consider:
- The person’s wishes and values
- Medical evidence
- Input from family members and carers
Where there is disagreement or uncertainty, the matter may need to be referred to the court of protection.
What is an Independent Mental Capacity Advocate?
In some situations, a person who lacks capacity may not have family members or friends available to support them. In these cases, an independent mental capacity advocate may be appointed.
A mental capacity advocate IMCA helps represent the individual’s interests during important decisions about:
- Serious medical treatment
- Long-term accommodation
- Safeguarding concerns
The role of the advocate is to ensure the person’s views and rights are properly considered.
The Role of the Court of Protection
The Court of Protection is responsible for making decisions or appointing deputies for people who lack capacity. The court may become involved where:
- There is no LPA in place
- Significant financial decisions are needed
- Family members disagree
- Ongoing management of finances is required
Families often need to apply to the court to gain authority to deal with financial matters. The process can take time, which is why planning ahead is so important.
The Office of the Public Guardian
The Public Guardian oversees attorneys and deputies acting on behalf of vulnerable individuals. The Office of the Public Guardian is responsible for:
- Registering LPAs
- Supervising deputies
- Investigating concerns about misuse of authority
This system is designed to safeguard individuals who have lost mental capacity.
What Happens if Family Members Disagree?
Disagreements can sometimes arise between relatives about what is in someone’s best interests.
This may involve disputes about:
- Care arrangements
- Medical treatment
- Financial decisions
- Property matters
A social worker, healthcare professional, or ultimately the court of protection may need to become involved to resolve the issue.
At AFG Law, we often advise families during these difficult situations, helping them understand the legal framework and available options.
Why Planning Ahead Matters
Many of the difficulties families face can be avoided by planning ahead.
Putting a power of attorney in place while someone still has capacity allows trusted individuals to make future decisions smoothly and efficiently.
Without this planning:
- Families may face delays
- Court applications may be required
- Access to finances can become difficult
- Important decisions may be more complicated
At AFG Law, we regularly see how early planning can significantly reduce stress for families later on.
How AFG Law Can Assist
At AFG Law, our experienced team provides clear and practical advice to families dealing with capacity issues and decision-making concerns.
We can assist with:
- Advising on decisions without power of attorney
- Preparing and registering LPAs
- Helping families apply to the court for deputyship
- Advising on property and financial affairs matters
- Supporting families during disputes regarding care or finances
- Advising on issues involving the court of protection and public guardian
We understand that these situations are often emotionally difficult. Our approach is focused on providing clear guidance and helping families make informed decisions with confidence.