If I lost mental capacity, could my husband just deal with everything on my behalf?

On behalf of Attwaters Jameson Hill posted in Trusts & Probate on Wednesday, January 11th, 2017

This is a question that we often get asked. Many people automatically assume that if there came a time when they lacked mental capacity, then their husband, family member or friend could simply step in and act on their behalf. However, this isn’t the case.

By 2021, the Alzheimer’s Society predicts that more than 1 million people in the UK will suffer from dementia. One in five people over 85 already suffer from it. The advice from charities caring for the elderly is that everyone should plan for a time when they might not be able to handle their own financial affairs, or deal with decisions about their care. That’s why a legal document called Lasting Power of Attorney has become much more commonly used.


How you can protect your interests

In the same way that a Will protects your loved ones after you pass away, a Lasting Power of Attorney (LPA) is designed to protect your interests if you were to lose the ability to make financial, or care decisions on your own behalf. Making an LPA allows you to choose someone you know and trust to make important decisions should you be unable to do so. If you created an LPA and named your husband as your attorney, he would be able to act on your behalf.

However, if you lose mental capacity and haven’t made an LPA, your husband or family member would have to apply to the Court of Protection to be appointed as your Deputy. The role of Deputy provides reduced powers and an annual fee is payable. If an acceptable Deputy can’t be found, the local authority could be appointed, or another professional person completely unknown to you. They will then be given access to your financial affairs and could decide matters such as where you live and what care you receive.


Peace of mind

There are two types of LPA, one covering property and financial matters, the other dealing with health and welfare. You can choose to make one or both types. You will need to appoint one or more people to be your attorney; these can be your husband, relatives or friends, or a professional adviser such as your solicitor.

The LPA documents will then need to be registered with the Office of the Public Guardian. This can be done by you or by your attorney.


The benefits in summary

Making an LPA means that:

  • You have the reassurance of knowing that if you’re unable to make decisions for yourself, someone you know and trust, of your own choosing, will be able to do so on your behalf
  • By acting now when you have mental capacity, you will save your husband, family or friends the expense and time of trying to gain similar powers in the future
  • Making an LPA represents a good opportunity to discuss matters with your family, and for you to make your views and wishes known

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