My Family Can Decide for Me Without an LPA: Why This Is Wrong
One of the most common and costly beliefs about Lasting Power of Attorney — and why the law works very differently from what most people expect.
Written by James Tyrrell · Reviewed by Anthony Dalton · Last reviewed
“If anything happens to me, my family will sort it out.” It is one of the most widely held assumptions about what happens when someone loses capacity. It is also completely wrong. Understanding exactly why — and what actually happens in practice — is one of the strongest reasons to make a Lasting Power of Attorney while you still can.
At a glance
- No family member — not a spouse, child, or sibling — has automatic legal authority to manage another adult’s finances or make binding medical decisions
- “Next of kin” is a contact designation only; it gives no legal decision-making power
- Banks will freeze sole accounts once they become aware the holder lacks mental capacity
- Without an LPA, the only route to legal authority is a Court of Protection deputyship, costing £2,000–£5,000 and taking many months
Key point: Under English and Welsh law, no family member — not a spouse, not an adult child, not a sibling — automatically has legal authority to manage another adult’s financial affairs or make binding medical decisions for them. That authority requires a registered LPA or a Court of Protection order.
What “Next of Kin” Actually Means
Most people believe being listed as next of kin gives them the right to step in and take over. It does not. “Next of kin” is a contact designation — nothing more. Hospitals use it to know who to call. It does not create any legal right to make decisions, access accounts, or instruct anyone to take action.
The term has no definition in statute in England and Wales that confers financial decision-making power. It does not appear in the Mental Capacity Act 2005 as a basis for authority. Medical staff may involve next of kin in conversations, but they are not legally required to follow their instructions on treatment.
The Bank Problem: Accounts Frozen Without Warning
This is where the myth causes the most immediate and painful practical damage. If someone loses mental capacity and their bank becomes aware of it, sole accounts will be frozen. The bank is legally required to protect the customer. It cannot release funds without appropriate legal authority.
A registered Property and Financial Affairs LPA is the recognised form of that authority. Without it, the bank will not act on instructions from a spouse, an adult child, or anyone else — regardless of their relationship to the account holder, regardless of how long they have been married, regardless of how reasonable the request seems.
This applies even if the couple have been married for decades. If the accounts are in one person’s sole name and they lose capacity, the other person cannot access those funds without formal legal authority. Paying household bills, funding care, or simply managing day-to-day expenses becomes impossible.
Joint accounts: a partial answer, not a solution
Joint accounts may remain accessible to the surviving account holder, but sole accounts — savings, ISAs, investment accounts, pensions — are typically frozen. Many people have substantial assets in their own name even if they share a current account.
Property: You Cannot Sell Without Legal Authority
If an elderly parent moves into residential care and the family want to sell the family home to fund the care costs, they cannot simply do it. If the property is in that person’s name and they no longer have mental capacity, any sale requires either a registered Property and Financial Affairs LPA or a Court of Protection order.
A solicitor cannot proceed with a property transaction without evidence of the seller’s legal capacity or an authorised representative. Adult children or a spouse cannot sign on someone’s behalf without that authority. The transaction simply cannot complete.
This creates situations where families are unable to access the funds they need to pay for care, sometimes at the very moment when the care is most urgently needed.
Hospital and Medical Decisions: A Common Misconception
In a medical setting, the misunderstanding about family authority is equally common. People assume that a spouse or adult child can give consent or refuse treatment on behalf of a patient who has lost capacity. In most cases, they cannot — not without a Health and Welfare LPA.
Medical staff may — and usually should — consult family members and take their knowledge of the patient’s wishes into account. Under the Mental Capacity Act 2005, anyone making a best-interests decision is required to consider the patient’s known wishes, feelings, beliefs and values, and to involve those close to them. But “being involved” is not the same as “having authority.”
Without a Health and Welfare LPA, clinical staff are not legally bound to follow a family member’s instructions. The treating clinician makes the best-interests decision. Family input matters, but it does not bind anyone.
What Families Can and Cannot Do Without an LPA
- Can: be involved in discussions — Family are typically consulted by NHS staff and social services, and can contribute background information about the person’s wishes and character.
- Can: provide care in practice — Day-to-day practical help does not require legal authority. Cooking, driving, supporting at appointments — none of that requires an LPA.
- Cannot: access sole bank accounts — Regardless of relationship, a bank will not release funds without formal legal authority.
- Cannot: sell or transfer property — No legal transaction involving property in the incapacitated person’s name can proceed without an LPA or court order.
- Cannot: give binding consent to or refuse medical treatment — Clinicians make best-interests decisions; family input informs but does not determine those decisions.
- Cannot: sign contracts or deal with HMRC — Organisations require legal authority. Family relationship alone is not enough.
What Happens Instead: Court of Protection Deputyship
If someone loses capacity without having made an LPA, and their family need to manage their affairs, the only legal route is to apply to the Court of Protection for a deputyship order. A deputy is appointed by the court and has the authority to act — but only to the extent that the court permits.
Deputyship is significantly more expensive, slower, and bureaucratic than making an LPA in advance. The application process can take many months. Ongoing court supervision is required. Deputies must submit annual reports to the Office of the Public Guardian. Legal costs can easily reach several thousand pounds. And in the meantime, the family may have no access to funds to pay for care.
See our guide on what happens when someone loses capacity without an LPA for a full account of what this process involves.
A Real Situation That Happens Every Week
George and Margaret were married for 41 years. Their savings were in Margaret’s name — she had always managed the household finances. When Margaret was diagnosed with dementia and could no longer manage her affairs, George found that he could not access the savings account to pay for her care home fees. The bank was sympathetic but could not help without a registered LPA or court order. There was no LPA.
George had to apply to the Court of Protection for a deputyship. The process took over six months. During that time, the family used personal funds to cover costs, and sought emergency support where possible. The deputyship eventually came through — but at a financial and emotional cost that a £92 LPA registration fee would have entirely avoided.
The Time to Act Is Now
A Lasting Power of Attorney can only be made by someone who has mental capacity at the time of signing. Once capacity is lost, it is too late. There is no such thing as making an LPA retrospectively. This is the single most important thing to understand about the whole system.
The people most at risk are not those who are already in difficulty — it is those who are currently well, assume they have time, and delay. See our guide on what happens without an LPA for more detail.
Don't wait until it's too late. Our guided LPA service makes it easy to protect your family, starting from just £92 to register. See pricing.
Key Takeaways
- Marriage gives no financial authority — a spouse cannot access sole bank accounts, sell property, or sign contracts on behalf of a partner who has lost mental capacity
- Next of kin has no legal standing — the term does not appear in the Mental Capacity Act 2005 as a basis for decision-making authority
- Medical staff consult but are not bound — without a Health and Welfare LPA, clinicians make best-interests decisions; family input informs but does not determine the outcome
- An LPA can only be made while you have capacity — once capacity is lost, it is too late and the only option is the much more expensive deputyship route
- Acting now costs £92–£92 per LPA — compared with £2,000–£5,000+ for a deputyship application through the Court of Protection
Common Questions About Family Authority and LPAs
Can my spouse make decisions for me without an LPA?
No. Marriage gives no automatic legal authority over a spouse’s finances or medical decisions. Banks will freeze sole accounts. Medical staff are not legally bound to follow a spouse’s instructions on treatment without a Health and Welfare LPA. Joint accounts may remain accessible, but sole assets are not.
What does next of kin mean legally?
“Next of kin” is a contact designation, not a legal status. It gives no financial authority and no legally binding decision-making power over medical treatment. The term is commonly used by hospitals, but it does not create any legal right to manage someone’s affairs.
What can family do if there is no LPA?
Family members can be involved in discussions, provide information about the person’s wishes, and be consulted by medical staff. What they cannot do is access sole bank accounts, sell property, or make legally binding decisions on behalf of someone who has lost capacity. To obtain legal authority, they would need to apply to the Court of Protection for a deputyship order.
Why can’t family access my accounts if I lose capacity?
Banks are bound by financial regulations that prevent them releasing funds from a sole account without proper legal authority. A registered Property and Financial Affairs LPA is the recognised form of that authority. Without it, the account is frozen until a court order (deputyship) is obtained, which can take many months and cost significantly more than making an LPA in the first place.
This guide was last reviewed and updated on . Information is based on current legislation and OPG guidance for England and Wales.
Official Guidance
Official resources from GOV.UK
Don’t Leave It to Chance
Without an LPA, your family could face months of court delays and thousands in legal fees.
