Read what happened
Imagine being in your eighties and suddenly finding that your children can no longer help you manage your own money.
They can’t access your bank accounts.
They can’t decide where you should receive care.
They can’t decide how your money should be spent on your care.
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Request Your Free Estate Planning ReviewAnd when they try to challenge what is happening, they discover that they have very little power to change it.
This is what happened to Helen.
Helen needed care
Helen was 83 when her circumstances changed.
As she became less able to manage on her own, the question of how she would be cared for became increasingly important.
Her children wanted to help.
They believed they could make sure their mother was looked after properly and that her own money would be used to provide the best care possible.
But there was a problem.
They didn't have the legal authority to manage her finances or make decisions on her behalf.
Being someone’s child doesn’t automatically give you that authority.
And neither does being their partner.
Her children couldn't simply use her money
Helen had money of her own.
Her children believed that money should be available to pay for the care she needed.
But they couldn’t simply access her bank accounts and start making payments on her behalf.
They couldn’t decide which care home would provide the best option for her.
They couldn’t simply take control of her finances because they were her children.
The situation became increasingly difficult.
And then the local council became involved.
The council took control
Because Helen was unable to manage her own affairs, arrangements were made for the local authority to take control of her finances and care arrangements.
Her children were effectively left on the outside.
They wanted to help their mother.
But they didn’t have the authority to take control themselves.
The council decided where Helen would receive care.
And she was eventually placed in a care home around 60 miles away from her family.
For her children, this was devastating.
Their mother was being cared for a long way from home, while they felt powerless to influence what was happening.
Imagine being in their position
Your elderly parent needs care.
You want them somewhere close enough that you can visit regularly.
You want their own money to be used to provide the best care possible.
You want to have a say in important decisions affecting their life.
But you discover that being their son or daughter doesn’t automatically give you those rights.
And once the arrangements are in place, changing them isn’t simply a matter of saying:
“We’re her family. We’ll deal with it.”
The law doesn’t work that way.
There was something that could have made a difference
There is an important lesson in Helen’s story.
Many people assume that if they become unable to manage their own affairs, their husband, wife, partner or children will automatically be able to step in.
They won't necessarily be able to.
This is where something called a Lasting Power of Attorney (LPA) can become incredibly important.
An LPA allows you to choose someone you trust to act on your behalf if you are no longer able to make certain decisions yourself.
For financial matters, a Property and Financial Affairs LPA can give your chosen attorneys authority to deal with things such as bank accounts, bills and property, within the powers and duties set by law.
That means you can make the choice about who you trust to help manage your affairs.
Rather than leaving your family trying to work out what they can and cannot do after a crisis has already happened.
But an LPA isn't a magic solution
There is something important to understand.
Having an LPA does not mean your children can simply do whatever they want.
An attorney has legal duties and must act in the person’s best interests. An LPA does not give someone unlimited control over another person’s life or money.
And importantly, an LPA does not automatically mean your children can refuse care or stop you from receiving care if you need it.
It doesn’t give them a right to simply say:
“Mum isn’t going into care.”
However, having the right arrangements in place can mean that the people you chose are in a much better position to be involved in managing your affairs and dealing with your finances, subject to the law and the circumstances.
That can include helping to manage your money and dealing with financial matters connected with your care.
And it can mean your family is not starting from scratch when something goes wrong.
What about choosing the care home?
This is another important distinction.
An LPA does not give an attorney an unlimited right to choose absolutely anything they want.
Care decisions can involve health and welfare law, the local authority, professionals and, depending on the circumstances, the person’s own wishes and mental capacity.
A Health and Welfare LPA is a separate type of LPA and can allow an attorney to make certain health and welfare decisions when the relevant legal conditions are met, including when the person has lost the capacity to make that particular decision.
So there isn’t a simple rule that says:
“Have an LPA and your children can choose your care home.”
But there is a very important principle:
You can plan ahead and choose who you want to have authority to help you if you can no longer make certain decisions yourself.
The decision has to be made before it's too late
This is perhaps the most important part.
You can only make a Lasting Power of Attorney while you have the mental capacity to make one.
Once someone has lost the capacity to make that decision, they cannot simply decide to appoint their children as attorneys.
The family may then have to consider other legal routes to obtain authority to manage the person’s affairs.
And that can take time, cost money and leave families facing decisions they never expected to have to make.
Helen’s children discovered just how difficult that situation can become.
They wanted to help their mother.
They wanted her closer to home.
They wanted her money to be used to look after her properly.
But by the time they needed the authority to act, the opportunity to put that authority in place themselves had already gone.
Don’t assume your family can automatically take over
Helen’s story raises an uncomfortable question.
If you could no longer manage your own finances tomorrow, who would deal with them?
Who would speak to your bank?
Who would deal with your bills?
Who would manage your property?
Who would help make important decisions about your finances?
And if you needed care, who would be in the best position to help make sure your affairs were properly managed?
Many people assume the answer is obvious:
“My husband will do it.”
“My wife will do it.”
“My children will deal with everything.”
But family relationships and legal authority are not the same thing.
If you want someone you trust to have the legal authority to help manage your affairs, it is something that needs to be considered before you lose the capacity to make that decision.
Find out more about Lasting Powers of Attorney
If you don’t have an LPA, or you’re unsure whether you have the right arrangements in place, it is worth finding out how LPAs work and what they could mean for you and your family.
This article is for general information only and is not legal or financial advice. The circumstances surrounding care, mental capacity, deputyship and Lasting Powers of Attorney can vary considerably. Professional advice should be obtained for your individual circumstances.
