When no attorney was appointed, somebody has to be appointed by a court

The gap that opens when nothing was arranged

Families discover this problem in the same way almost every time. Someone has a stroke, a rapid decline or a serious accident, and within days there are decisions that nobody has the authority to take. A bank will not discuss the account, a care provider needs consent, a property cannot be sold to fund the care it is needed for. The relatives are close and willing and have no legal standing whatsoever.

That last point is the one people find hardest to accept. Being a spouse, an adult child or a full-time carer does not, in most systems, confer authority to make decisions for another adult. Authority comes either from an instrument the person created while they still could, or from an appointment made by a court or comparable body afterwards. There is no informal third option, whatever a sympathetic branch manager may occasionally allow.

What a court-based appointment looks like

The names differ across jurisdictions — guardianship, deputyship, curatorship, administration and others — and the architecture is broadly similar. An application is made, usually supported by medical evidence about the person’s ability to make the relevant decisions. Relatives and the person themselves are notified and may object. A body with authority over such matters decides whether an appointment is needed, who should hold it, and what powers it carries.

Powers are typically split. Authority over property and financial affairs is commonly separated from authority over personal welfare, health and living arrangements, and the two may be granted separately or to different people. Many systems are noticeably more cautious about welfare powers, since decisions about where somebody lives and what treatment they receive touch on rights that are protected at a constitutional level in a number of places.

Supervision is the point, and the cost

The appointed person is generally a fiduciary, obliged to act in the person’s interests, to keep their money separate, to keep records, and often to file periodic accounts with a supervising authority. Security may be required, expenditure above a level may need approval, and gifts from the person’s assets are usually tightly restricted even where the family regards them as obviously what the person would have wanted.

This supervision is the reason the process is slower and more expensive than a lasting instrument made in advance. It is also the reason it exists: the person concerned cannot complain about mismanagement, so somebody else has to be watching. Families frequently experience the oversight as an insult. It is better understood as the price of authority granted without the person’s own choice of who should hold it.

Substitute decisions and supported decisions

There is a genuine international debate running underneath all of this. The traditional model substitutes somebody else’s decision for the person’s own. A newer approach, reflected in international human rights instruments and in reforms in several countries, emphasises supporting a person to make their own decisions wherever possible and treating full substitution as a last resort.

The practical consequence is that many systems now require an appointment to be as limited as possible in scope and duration, and require the person’s wishes, values and past statements to be given real weight rather than being noted and set aside. How far reform has progressed varies enormously. Some jurisdictions have restructured their law around supported decision-making; others retain broad guardianship regimes that critics regard as outdated.

Emergencies, interim measures and the everyday

Because appointments take time, most systems provide something for the interval: an interim or emergency order covering a specific urgent decision, or a mechanism allowing an authority to act pending a full determination. These are limited and are not a substitute for the full process, though they can prevent the worst of the practical damage.

Alongside them sit narrower everyday arrangements. Rules permitting payment of small sums from an account, direct payment of benefits to a nominated person, or provider-level appointee schemes exist in many places and are far simpler. They cover a fraction of what a full appointment covers, and using one does not remove the need for a proper appointment where significant assets or serious welfare decisions are involved.

Where to start, and why not to wait

The available procedures, the terminology, the evidence required, the division between financial and welfare powers, the supervision imposed and the extent of reform towards supported decision-making all differ substantially between jurisdictions, and the position is changing in a number of them. Nothing here describes the position of any particular family, and outcomes depend on medical evidence and personal circumstances a general article cannot know.

Two things are worth saying plainly. Do not sign documents on another adult’s behalf, operate their accounts using their details, or transfer their property without authority, however practical it seems at the time; those steps can amount to serious wrongdoing and they complicate every later application. And where capacity is declining but has not gone, there may still be a window in which the person can appoint someone themselves, which is faster, cheaper and reflects their own choice. That window closes without warning, so a solicitor or a local advice service should be consulted quickly.