When a loved one loses the ability to make their own decisions, families often want to know how to manage the person’s affairs, what authority is needed and where to turn for advice. The law provides a framework to safeguard people who have lost capacity, but understanding the process can be difficult without the right guidance.

In this blog, the expert family law solicitors at Switalskis explain what it means when someone loses capacity, the difference it makes if a lasting power of attorney is already in place, and what happens if there isn’t one. We also look at how legal advice can support families through the process.

What does ‘losing mental capacity’ mean?

Mental capacity refers to a person’s ability to make their own decisions about specific matters, such as financial affairs, medical treatment or where they live. A person may lose mental capacity due to dementia, a brain injury, a stroke or a severe illness that affects their ability to communicate. Sometimes the loss of capacity is temporary; other times it is permanent.

When someone no longer has capacity, decisions must be made on their behalf. The Mental Capacity Act 2005 sets out how this should happen and who may be given the legal authority to act. This framework underpins the steps that families need to take.

If a lasting power of attorney is in place

If your loved one set up a lasting power of attorney (LPA) before losing capacity, the person they appointed as attorney can now step in to make decisions. There are two types of LPA, each of which governs a different aspect of the person’s life:

• A property and financial affairs LPA allows the attorney to manage money, bank accounts, property, and other financial decisions, including the ability to sell property if needed.
• A health and welfare LPA covers decisions about medical treatment, care, and daily welfare.

The attorney must act in the person’s best interests and can only make decisions within the scope of authority granted by the LPA. Their powers are legally binding but limited, which means they cannot go beyond the specific decisions set out in the document. For example, a property and financial affairs attorney may manage bank accounts or sell property, but they cannot make welfare decisions unless they are also appointed under a health and welfare LPA.

If there is no lasting power of attorney

If your loved one has lost capacity and there is no lasting power of attorney in place, you will not automatically be able to take control of their affairs. Even if you are a close family member or friend, organisations like banks, healthcare providers and others will not accept instructions without the proper legal authority.

In these circumstances, an application to the Court of Protection is usually required. The court can appoint a deputy to make ongoing decisions on the person’s behalf. There are two main types of deputyship that mirror the two types of LPA:

• Financial affairs deputyship gives authority to manage money, bank accounts, property and financial decisions, such as paying bills or selling property.
• Welfare deputyship covers decisions about healthcare, medical treatment and daily care arrangements.

The court may also be asked to make one-off rulings about specific decisions if deputyship is not necessary.

Applying for deputyship can be complicated. It often involves submitting medical evidence from a doctor to confirm that the person has lost capacity, completing detailed application forms and notifying other family members who may be affected. The process can take several months, which is why seeking legal advice at the outset is often recommended. A Court of Protection solicitor can prepare the application, obtain the necessary medical evidence and make sure the deputyship order provides the right level of authority to manage the person’s affairs.

In some situations, the court may decide to appoint a professional deputy instead of a family member, particularly if the person’s financial affairs are complex, there are disagreements within the family or there is no suitable individual to take on the role. Deputies are supervised by the Office of the Public Guardian, which monitors how they carry out their responsibilities.

Ordinary and enduring powers of attorney

Alongside lasting powers of attorney, you may also hear about ordinary powers of attorney and enduring powers of attorney. Each works differently, and it is important to understand how they apply if your loved one has lost capacity.

• Ordinary power of attorney: this is only valid while the person still has capacity. It cannot be used once capacity has been lost.
• Enduring power of attorney (EPA): EPAs were replaced by lasting powers of attorney in 2007, but documents made before then may still be valid. An EPA only covers property and financial matters, and if the person has now lost capacity, it must be registered with the Office of the Public Guardian before it can be used.

A solicitor can advise whether an existing EPA is valid, guide you through the registration process, and explain whether further applications to the Court of Protection may be needed.

Get in touch

When a loved one loses capacity, the legal process can feel complex. A solicitor can:

• Confirm whether existing powers are valid and legally binding.
• Prepare and manage deputyship applications.
• Represent the person’s best interests if disputes arise.
• Liaise with doctors, the court and the Office of the Public Guardian.

Legal advice will make sure that your loved one's rights are protected and that their affairs are managed correctly. If you are unsure what steps to take, Switalskis can help. Our team has extensive experience with lasting powers of attorney, deputyship applications and Court of Protection cases. Call us today on 0800 138 0458 to learn how we can help, or get in touch through our website .