Wills & Family
Who should I choose as executor if I don’t trust my family?
Not everyone has a relative they would trust to handle their estate. Here is how to think about other options, from friends to professional executors.
Why it matters
Many people assume a husband, wife, partner or adult child can automatically deal with their affairs if they become unwell. In England and Wales, that is not usually the case. Being next of kin does not, by itself, give legal authority over someone else’s bank accounts or property.
A Lasting Power of Attorney (LPA) is the main way to choose in advance who can act for you. Our guide to how an LPA works explains the basics.
Money and property without an LPA
If someone loses capacity and has no registered property and financial affairs LPA:
- banks may freeze or limit access to accounts held in their sole name
- family may not be able to sell their home, for example to pay for care
- bills and investments may be harder to manage
Joint bank accounts may sometimes still be used by the other account holder, but banks have their own rules, and this does not cover everything.
Deputyship through the Court of Protection
Where there is no LPA, someone can apply to the Court of Protection to be appointed as a deputy. GOV.UK explains that there are two types:
- Property and financial affairs deputy – for things like paying bills or organising a pension
- Personal welfare deputy – for decisions about medical treatment and care
GOV.UK notes that personal welfare deputies are appointed less often, usually where there is a dispute or ongoing decisions are needed.
How deputyship differs from an LPA
| LPA | Deputyship | |
|---|---|---|
| Who chooses? | You choose your attorneys while you have capacity | The court decides who is appointed |
| When is it arranged? | In advance | After capacity has been lost |
| Ongoing supervision | Attorneys must follow the law; the OPG can investigate concerns | Deputies are usually supervised by the Office of the Public Guardian and may need to report regularly |
| Costs | A registration fee for each LPA | Court application fees and ongoing supervision fees may apply |
Deputyship can take longer to arrange, and the person you would have chosen may not be the person the court appoints.
Health and care decisions without an LPA
Without a health and welfare LPA or a deputy, decisions about care and treatment are usually made by the professionals involved, such as doctors or social workers. Under the Mental Capacity Act 2005, they must act in the person’s best interests and should consult family and friends where appropriate. However, family members do not get the final say.
You can read about the difference between financial and welfare LPAs to see what each would cover.
A practical example
Tom, 68, has a sudden brain injury. His savings and pension are in his sole name, and he has no LPA. His wife cannot access his savings to pay for adaptations to their home. She applies to the Court of Protection to become his property and financial affairs deputy. While waiting, the family manage with her own income. Once appointed, she must keep accounts and report to the Office of the Public Guardian.
Can you still make an LPA?
You can only make an LPA while you have mental capacity. Capacity is decision-specific and can come and go, so someone in the early stages of a condition may still be able to make one. A certificate provider must confirm they understand what they are signing. If you are unsure, a professional can help. We do not ask about diagnoses; a professional can talk through the right route with you.
Older enduring powers of attorney
Before October 2007, people could make an enduring power of attorney (EPA), covering property and finances. A valid EPA signed before then may still be used, and must be registered once the donor is losing or has lost capacity. A professional can check whether an older document is still effective.
Scotland and Northern Ireland
Different rules apply in Scotland, where guardianship and intervention orders are available, and in Northern Ireland. See mygov.scot and nidirect for official guidance.
When to get professional help
It may help to speak to a solicitor or other qualified professional if a loved one may be losing capacity, if you are considering a deputyship application, or if you want to make an LPA while you are able. Planning ahead is part of wider estate planning.
Next steps
If you would like help making or registering an LPA, you can find out about our Lasting Power of Attorney service or go straight to the short LPA questionnaire. WillHarbour is an introduction service, not a law firm. With your permission, we pass your enquiry to up to three suitable firms, such as solicitors or will-writing companies. Each must tell you about its fees and its referral arrangement with us before you decide whether to instruct it.
Frequently asked questions
Can my husband or wife manage my money automatically?
Not usually. Being married does not give legal authority over accounts or property in your sole name. An LPA or a court-appointed deputy is usually needed.
What is a deputy?
A deputy is someone appointed by the Court of Protection to make decisions for a person who lacks capacity and has no LPA covering those decisions.
Is it too late to make an LPA after a diagnosis?
Not necessarily. What matters is whether the person has the mental capacity to make the LPA at the time. A professional can help assess the right way forward.
Official sources
This guide is general information about the law in England and Wales at the time it was last reviewed. It isn’t legal, tax or financial advice. For advice on your own situation, speak to a qualified professional.
