Can My Family Make Decisions for Me If I Lose Capacity?
Most people assume that if something happened to them, their family would automatically be able to step in and help. They can't. Here's what you need to know.
The assumption
It's completely natural to assume that if you were in an accident, developed dementia, or became seriously ill and could no longer manage your own affairs, your spouse, children, or closest relatives would be able to take over. Pay your bills. Access your bank account. Make decisions about your care. Talk to your doctors.
It's also, unfortunately, wrong.
In both England and Scotland, there is no automatic legal right for a family member — not even a spouse — to make decisions on your behalf if you lose mental capacity. Without the right legal documents in place, your family may find themselves locked out of exactly the decisions they need to make, at exactly the moment they need to make them.
What is mental capacity?
Mental capacity means the ability to make and communicate your own decisions. Most of us have it and take it for granted.
But capacity can be lost — temporarily or permanently — through accident, illness, or the progression of conditions like dementia, stroke, or brain injury. It can happen gradually or suddenly. It can happen at any age.
When it does, someone needs to be able to act on your behalf. The question is who — and whether they have the legal authority to do so.
What happens without a Lasting Power of Attorney?
If you lose capacity without having made a Lasting Power of Attorney (LPA), the people closest to you cannot simply step in.
Your spouse cannot access a bank account that is in your sole name. Your children cannot instruct your doctors on your care or make decisions about where you live. Your family cannot sell your property on your behalf, even if that is what you would want.
To gain that authority, someone would need to apply to the Court of Protection to be appointed as your deputy. This process:
- Takes many months
- Costs significantly more than making an LPA would have done
- Requires ongoing reporting to the Court of Protection every year
- May result in the Court appointing someone you would not have chosen
- Does not guarantee the outcome your family is hoping for
During that time, decisions may be delayed, bills may go unpaid, and your family may be left in a deeply stressful and uncertain position — at an already difficult time.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document that lets you appoint someone you trust — called your attorney — to make decisions on your behalf if you lose capacity.
There are two types:
Property and Financial Affairs LPA
This covers decisions about your money and property — paying bills, managing bank accounts, dealing with investments, and buying or selling property. Your attorney can act on your behalf with banks, HMRC, pension providers, and anyone else involved in your financial life.
Health and Welfare LPA
This covers decisions about your personal wellbeing — your medical treatment, where you live, your day-to-day care routine, and, if you choose, whether life-sustaining treatment should be given or withheld in circumstances where you cannot decide for yourself.
This type of LPA can only be used once you have lost capacity. It cannot be used by your attorney while you are still able to make your own decisions.
Who should be my attorney?
Your attorney must be someone you trust completely. They will have significant power to make decisions that affect your life and finances, and it's important that they are:
- Someone with the maturity and judgment to act in your best interests
- Someone who will be available and willing to take on the responsibility
- Over 18, and not bankrupt (for a Property and Financial Affairs LPA)
You can appoint more than one attorney, and you can specify whether they must act jointly (all must agree on every decision) or jointly and severally (each can act independently). You can also appoint a replacement attorney to step in if your first choice is unable to act.
When should I make one?
Now — while you have capacity to do so.
An LPA can only be made while you have mental capacity. Once capacity is lost, it is too late. There is no way to make an LPA after the fact.
This is the most important point. LPAs are not documents for old age. A serious accident or sudden illness can affect anyone at any age. The time to put one in place is before you need it.
What about in Scotland?
In Scotland, the equivalent documents are called Continuing Powers of Attorney (for financial and property matters) and Welfare Powers of Attorney (for health and personal welfare decisions). Both are governed by the Adults with Incapacity (Scotland) Act 2000.
The principles are similar to those in England, but the terminology, registration requirements, and some procedural details differ. If you live in Scotland, it's important to ensure your documents are drafted specifically for Scots law.
Do I need both types?
In most cases, yes. Financial and health decisions are separate, and a gap in either area can cause real difficulties.
Consider what would happen if you had a Property and Financial Affairs LPA but not a Health and Welfare LPA. Your family could manage your money, but they would have no formal authority to make decisions about your care — including where you live and what treatment you receive. Those decisions could be made by professionals with no knowledge of your wishes, values, or preferences.
Both types work together. For most people, making both at the same time is the most practical and cost-effective approach.
The simple version
If you lost capacity tomorrow, could the people you trust most step in and help?
Without an LPA, the answer is no — regardless of how close they are to you, how long you've been together, or how obvious your wishes might seem. The law requires specific legal authority, and without it, your family's hands are tied.
An LPA is not a document about dying. It is a document about living — and making sure that if the worst happens, the right people are in control.
At Your Wills Team, we handle both types of LPA alongside wills and trusts. If you'd like to understand what you need and how it works, our free 30-minute call is the best place to start.
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Your Wills Team is part of the Your Legal Team family. All services are provided by qualified UK lawyers at fixed, transparent fees.
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