What to do if no power of attorney is set

What to do if no power of attorney is set

A Power of Attorney is an important legal document that protects the health, wellbeing and finances of an older person. Sometimes families are faced with situations where they want to make decisions for their loved one but lack the legal power to do so. Here, we are taking a closer look at what a Power of Attorney is, the different types, the potential challenges of not having one in place, the steps to take if you don’t have one, what happens in cases where dementia becomes a factor, and how to avoid this situation coming up in future. At Home Instead, our aim is to help people age positively and in place by bringing expert care to their home. For nearly 20 years, we have been providing the highest standard of care, and creating industry-leading training programmes for our Care Professionals that are accredited by nursing and medical professionals. Today, we are the world’s largest global domiciliary care network, supporting over 100,000 older adults with personalised, tailored care at home. So whatever questions you have about the Power of Attorney, we can help. 

What challenges might families come across if they do not have a Power of Attorney? 

Without a Power of Attorney document in place, many families will find it more difficult to make decisions for an older loved one. This can cause several challenges, for example: 

• Handling bank accounts or managing investments, resulting in missed payments and penalties, or even legal action 
• Discussing any medical decisions with doctors, for example, if the person does not have an Advance Decision to Refuse Treatment that lays out their wishes 
• Managing household affairs like selling a home, paying bills or rent, making mortgage decisions, and more
• Making crucial decision during emergency medical care or critical situations 
• Making decisions together as a family if disagreements arise, and mediation is needed 

These issues can cause significant stress on family members when things are not straightforward, especially when they are also managing their own responsibilities such as childcare and jobs. Making sure you have a Power of Attorney in place can make the process of making decisions for an older loved one smoother, and can ensure your relative’s health and finances can be speedily and effectively managed in challenging situations.

Act now

Although it may seem obvious, many people procrastinate on taking action at the first signs of an older person requiring a Power of Attorney. For many, this is due to an assumption or hope that they will automatically be given the authority to manage their family member’s medical or financial decisions, but this is not the case. It is important to set up a Power of Attorney as soon as possible if you suspect this may become a problem in the near future. Regardless of any potential incapacitation, this is a helpful document. Although there is no suggested age to put this in place, if you begin to develop various health conditions, or you have reached an age where you feel a significant health event would be more likely to render you incapable of making decisions, then it is best to start the process to prevent any unnecessary delays or disruptions. 

Speak to a professional 

If you are unsure about the process of obtaining a Power of Attorney after a loved one already lacks the mental capacity to make this decision, it is usually best to speak to a professional such as a legal expert or solicitor, to get their informed opinion on your situation. Depending on your loved one’s condition and the imminent decisions you must make, they may recommend slightly different advice to what you have read here or elsewhere online. A professional can offer you tailored guidance to make sure you do not waste any more time getting the wrong type of Power of Attorney for your needs, and that you are complying with all necessary steps. 

Gather relevant documents

Before you begin to apply for the correct role (see below), it is helpful to start by gathering together all of the person’s important documents, as many of them will be needed when you start applications. These might include:

• Financial statements and income details 
• Medical records
• Utility bills
• Relevant legal paperwork
• GP records indicating the person’s capacity

Notify appropriate institutions

If you are immediately concerned about protecting the person’s finances and having the right to make medical decisions on their behalf, it is best to inform the relevant institutions that may be involved, such as the person’s bank to discuss their advice for situations like yours, and to potentially freeze any accounts if there is a chance for misspending. You should also inform their GP and any healthcare providers, and arrange an assessment of their capacity if possible. This could come in handy when obtaining a deputyship or similar. If the person lives alone, it could also be helpful to inform any relevant service providers of things like utility bills, so they can advise on the best way to handle this. Remember, these institutions will not be able to grant access without the legal authority of a Power of Attorney, but they may be able to offer guidance on the next steps, and could take other steps to prevent you from running into further issues down the line.

Look into obtaining a deputyship, or similar position

When an older person has developed a condition like dementia, or is unable to communicate their wishes due to another medical condition, then it may be too late to put a Power of Attorney in place, since this relies on the person themselves granting permission to a particular person they trust. Doing this after the fact defeats the purpose. Instead, it is often necessary for an appropriate family member to be granted another position of authority by a judge, which could be:

• A Guardianship – This allows the appointed person to make decisions about where the person lives, the medical appointments they must attend, and the mental health professionals who can visit the person at home. A Guardianship does not have the power to force the person to get treatments they do not want to, and they cannot consent to treatment on their behalf. They also have no power over finances.
• An Appointee– This allows the person to receive, manage and spend another person’s benefits, such as their State Pension, if they cannot. This is done through the Department for Work and Pensions (DWP), and helps to avoid anyone losing or accidentally mismanaging their benefits if they are suddenly unable to claim them and use them to pay bills.
• An Independent Mental Capacity Advocate(IMCA) – This position exists to help anyone who has no family, close friends or attorney to advocate for them if they need certain decisions to be made on their behalf. The IMCA will be appointed for them by their local council or the NHS, and their role is to ensure the person’s wishes are respected where possible. If this person is a stranger to them, it may be difficult for them to do this without knowing them or without prior written instructions (such as a Living Will) to explain what they want, but the IMCA must do what they can to ensure the person’s best interests remain a priority. 
• A Deputyship– The most common role for anyone who must make decisions on behalf of a loved one without capacity is a deputy, which–depending on the type of deputyship granted–allows them to make decisions relating to all areas of the person’s life; finances, health and wellbeing. This is appointed by the Court of Protection, who will review a deputyship application, look at the specifics of their situation, and decide which family member should receive the role of deputy. 

Although a deputyship may seem like an equivalent to a Power of Attorney, in fact, a deputyship application takes longer, is more expensive (there are annual fees), and the deputy is chosen by the court rather than the family. In addition, there are usually annual reports to submit if you are a deputy, so it is always better to obtain a Power of Attorney in advance if possible.

Look at alternative options 

If you are unsure where to begin if your loved one has no Power of Attorney in place, but you need to start making decisions on their behalf, you may find more information through useful organisations and their resources. Try reaching out to the person’s local council to get their advice on where to start, or to the local social services department for guidance. Elderly care organisations in your area, such as Age UK, could also point you in the right direction when it comes to your unique situation, and Citizen’s Advice has information on finding free or affordable legal assistance. You can find additional links and resources later in this article. 

What happens if no Power of Attorney is in place for someone with dementia?

For a relative with dementia who no longer has mental capacity to make their own decisions, or who is making decisions that family members know to be unusual or against their known wishes, it is usually necessary to have either an Enduring Power of Attorney (EPA) or a Lasting Power of Attorney (LPA) so that an appointed family member may make decisions about their loved one’s health and finances without delay or resistance. If this is not already in place, making these decisions on their behalf becomes more difficult legally. In these situations, decisions will usually be handled by default, and reverted to professionals such as doctors, social workers or solicitors, or to local authorities. When it comes to financial issues, this can become very complicated, since most service providers will not allow anyone else to act on the person’s behalf. In these cases, bills can sometimes go unpaid, and benefits may be blocked from being collected.It is usually necessary to apply for a deputyship as soon as possible in order to have more control over all decisions and necessary logistics. A deputyship can come in handy for those with a loved one who has dementia and no Power of Attorney in place, but this should be considered a last resort – a Power of Attorney is preferable due to cost and ease of use.For clarity, a person with early stage dementia may still be able to make a Power of Attorney, so if you think your loved one still has capacity to decide this, you should speak to their doctor and a solicitor about this as quickly as possible. If their doctor feels they can no longer make this decision, they will recommend other options, which may include a deputyship to help legally handle their affairs from here on out.You can read more in our guide to getting Power Of Attorney for an ageing parent with dementia.

How to avoid a situation where a Power of Attorney is missing

The earlier you can put a Power of Attorney in place, the better, so being proactive with this is important. Many people assume their spouse, children or next of kin will automatically be given rights if they lose capacity to make decisions, but this is a common misconception that often catches people out and creates tricky legal situations. A Power of Attorney is not automatically granted to children, or to those who are married or in a civil partnership. You must register a Power of Attorney to ensure the person’s wishes will be respected.To make sure everyone is on the same page and knows your loved one’s wishes, the ideal scenario is to get together as a family and discuss your relative’s needs before they have any health issues, or as soon as there is any indication of potential loss of capacity. While it is never too late to have this discussion, the earlier the better is the best rule of thumb. You may find information in our guide on how to get Power Of Attorney for ageing parents.

Resources for families who need a Power of Attorney

If you would like to discuss putting a Power of Attorney or deputyship in place, here are some resources that may help as you begin the process: 

• The government website has the most up-to-date information on creating a Power of Attorney and how to do this
• You can find forms and more information about the Office of the Public Guardian here
• The Office of the Public Guardian also has a safeguarding unit for cases of suspected abuse, so if you have concerns relating to an individual or an attorney, you can find out more here
• Age UK has further information on how to obtain a Power of Attorney and deputyship, and which one may be best for you 
• Citizen’s Advice has more information on the Power of Attorney process, as well as finding free or affordable legal help
• MoneyHelper is a free service from the Money and Pensions Service with additional information on certain financial issues, and they can help you seek a financial adviser
• Society of Later Life Advisers (SOLLA) is an organisation offering information on accredited financial advisers specialising in issues relating to older individuals
• If you are looking for advice specifically about how to make decisions for a loved one with dementia, the Alzheimer’s Society has a lot of great advice and resources 
• Solicitors for the Elderly (SFE) is an organisation providing legal advice for older people, their families and caregivers, and they can put you in touch with solicitors and legal executives if needed
• For more advice specifically relating to health decisions for an older relative, the NHS has more information on what you cannot do without a Power of Attorney in place 
• Home care services, such as our services at Home Instead, can help with the practical side of caring for an older loved one, and could provide respite care while you go through the legal process of obtaining a Power of Attorney or deputyship  

Our experienced, supportive Care Professionals can provide the exact combination of care you need to help maintain your loved one’s quality of life in the comfort of their own home. You can reach out to your local Home Instead office to discuss your options.We’re an award-winning home care provider and part of a worldwide organisation devoted to providing the highest-quality relationship-led care for older people in their own homes. Arranging care for yourself or your loved one shouldn’t be stressful, so whatever questions you would like answered, feel free to reach out to the Home Instead team to discuss your needs.