If your husband or wife has lost the ability to make their own decisions (through dementia, a stroke, a brain injury or serious illness) you may need legal authority to manage their money, property, health and care. A common and costly misconception is that being married automatically gives you that authority. It does not. In England and Wales, what you can do depends mainly on whether your spouse made a Lasting Power of Attorney (or, for property and financial affairs, a valid Enduring Power of Attorney made before 1 October 2007) before losing capacity. Here is a plain-English guide.
The starting point: the Mental Capacity Act 2005
All of this is governed by the Mental Capacity Act 2005 (MCA), which sets out core principles:
- Capacity is presumed unless shown otherwise.
- Capacity is decision-specific, a person may be able to make some decisions (what to wear, small purchases) but not others (selling a house). It can also fluctuate over time.
- A person is not to be treated as unable to decide until all practicable steps to help them have been tried.
- An unwise decision does not by itself mean a person lacks capacity.
- Any decision taken for someone who lacks capacity must be in their best interests and the least restrictive option.
Option 1: A Lasting Power of Attorney or Enduring Power of Attorney (if one was made in time)
A Lasting Power of Attorney (LPA) is a document your spouse can make while they still have capacity, appointing you (and/or others) to act for them. If your spouse made a Property and Financial Affairs LPA, that covers finances. If they made a valid Enduring Power of Attorney (EPA) before 1 October 2007 (the date LPAs replaced EPAs), that EPA can still be used for property and financial affairs, subject to being registered with the OPG if the donor is or is becoming mentally incapable. There are two types:
- Property and Financial Affairs LPA, lets the attorney manage bank accounts, bills, pensions, and buying/selling property.
- Health and Welfare LPA, lets the attorney make decisions about medical treatment, care and where the person lives (this one can only be used once the person lacks capacity).
To be valid, an LPA must be registered with the Office of the Public Guardian (OPG). If your spouse already made and registered an LPA naming you, you can simply act under it, no court application needed. This is by far the simplest route, which is why making LPAs while well is so strongly advised.
Option 2: Court of Protection deputyship (if there is no LPA)
If your spouse has already lost capacity and there is no LPA, they can no longer make one. Instead, you must apply to the Court of Protection to be appointed a deputy. Again there are two kinds:
- Property and financial affairs deputy, the more common appointment.
- Personal welfare deputy, granted more rarely, as the court often prefers to decide significant welfare issues itself or leave them to best-interests decision-making.
Becoming a deputy involves an application, a capacity assessment by a professional, a fee, and ongoing supervision by the OPG, to which deputies must usually report and account each year. It is slower and more expensive than acting under an LPA.
Option 3: A one-off court order
If only a single decision needs to be made (for example, selling a specific property), the Court of Protection can make a one-off order rather than appointing a deputy for everything.
Health and care decisions where there is no welfare authority
If no one holds a health and welfare LPA or welfare deputyship, day-to-day and medical decisions are made in the person's best interests, usually by the treating doctors and care team, consulting close family such as you. Where there is a serious dispute or a particularly grave decision (for example, life-sustaining treatment), the matter can be referred to the Court of Protection. Your spouse may also have made an advance decision to refuse specific treatment. An advance decision is binding only if it is valid and applicable to the treatment and circumstances in question. If it refuses life-sustaining treatment, it must be in writing, signed, witnessed, and expressly state that the refusal applies even if life is at risk.
Practical points
- Marriage alone gives no automatic authority over a spouse's solely-held finances or their medical decisions.
- Joint bank accounts can often still be operated, but sole accounts and assets need proper authority.
- The cheapest, fastest protection is to make LPAs while both of you still have capacity, encourage family members to do the same.
- Keep records, act only in your spouse's best interests, and take advice early if care-home fees, property or benefits are involved.
Key takeaways
- Everything turns on the Mental Capacity Act 2005 and its best-interests, least-restrictive principles.
- If your spouse made a registered LPA, you can act under it now, the simplest route.
- If there is no LPA and capacity is already lost, apply to the Court of Protection for a deputyship (or a one-off order).
- For health decisions without a welfare LPA/deputy, decisions are made in best interests, consulting you, with the Court of Protection for serious disputes.
Sources
- Mental Capacity Act 2005 (capacity principles, best interests, Lasting Powers of Attorney, Court of Protection, deputies)
- Office of the Public Guardian (registration of LPAs and supervision of deputies); Court of Protection
- Mental Capacity Act 2005 Code of Practice
--- This article is general information about the law of England & Wales as at 2026, not legal advice. For advice on your circumstances, consult a qualified solicitor.