September 20, 2019 | Lasting Powers of Attorney

A diagnosis of dementia can be challenging not just for the individual, but also for their family.  With so many changes, it can be hard to find time to think about practical arrangements for the future. 

However, it is a good idea to start preparing early for a time when your loved one may be unable to make decisions for themselves.  Focusing on matters within their control can be reassuring.

What is a Lasting Power of Attorney?

Dementia affects everyone differently.  Although it is common for a person diagnosed with dementia to experience problems with their memory and decision making.  As the symptoms will get worse over time, the individual may eventually lose the capacity to make decisions for themselves.

While your loved one still has capacity, they can name people to make decisions on their behalf when the time comes.  Those appointed will be known as “attorneys”.  They might be family members, friends or professionals.

The legal document granting this authority is called a Lasting Power of Attorney (“LPA”).  The person making the LPA is called the “donor”. There are two types of LPA covering decisions about property and finances and health and wellbeing.

How can a Lasting Power of Attorney help a person with dementia?

Naming an attorney means that your loved one will know exactly who will be making decisions for them if their symptoms progress.  It also gives them the opportunity to discuss their wishes for care and support with you.

Taking action early also avoids the problems that arise when there are no LPAs in place (see below).

We recommend preparing both types of LPA to ensure all types of decision can be made without delay.

What decisions can be made by attorneys under a Financial LPA? 

Depending on how the Financial LPA is drafted, an attorney might be able to make any decision the donor could have made if they had capacity, subject to the limitations set down in law.

Decisions made for the donor might include:

*  managing the donor’s bank accounts

*  paying for household, care and other expenses from the donor’s funds

*  making purchases to improve the donor’s quality of life

*  maintaining their property

*  claiming allowances, benefits or pensions for the donor

*  buying and selling property if necessary.

How is this different from a Health and Welfare LPA?

In contrast, an attorney under a Health and Welfare LPA will be able to make decisions about:

*  the donor’s medical treatment or any surgery they receive

*  where the donor lives and how they are supported

*  everyday decisions regarding the donor’s diet, dress and routine

*  life-sustaining treatment (if permitted by the donor)

What happens if there is no Lasting Power of Attorney?

If the person living with dementia loses capacity without a Financial LPA, their assets will be frozen, and their affairs left in limbo.

It will be necessary for a family member to apply to the Court of Protection to be granted authority to manage their finances (this is called a Deputyship Order). Preparing an LPA is cheaper and quicker then obtaining a Deputyship Order.  It also means than the attorneys have the ability to act immediately if necessary.

If mental capacity is lost without a Health and Welfare LPA in place, these decisions will be made by the medical professionals involved or the local authority.  While it is usually the case that these authorities act respectfully and consult the family, conflict can arise when family members do not agree with the decisions being made on behalf of their loved one.

Who decides when someone with dementia cannot make a decision for themselves?

Who is involved in deciding whether someone is unable to make a decision will depend on the type of decision being made and when it is required.

For most day to day decisions, such as what a person eats, wears and listens to, a family member or carer may undertake an assessment informally.

For larger more complex decisions, such as whether a person can manage their own finances or whether they can refuse medical treatment, a professional may be asked to give their opinion. For example, a doctor or solicitor may visit your loved one to carry out a formal assessment.

The person making the assessment will need to have regard to the test set out in the Mental Capacity Act 2005 (“the MCA 2005”).

How do you decide if someone with dementia has mental capacity (the test)?

Under the MCA 2005, the test for deciding whether someone has the capacity to make a decision can be divided into two stages:

(1)  Firstly, does the person have a condition that affects their mind or brain?

(2) If so, does that condition mean that the person is unable to make the decision in question at the time it needs to be made?

Stage 2 means than the test for mental capacity is decision specific.  Accordingly, a person may lack capacity to make some decisions but not others.  For example, a person may be capable of making a decision to purchase new shoes, but not to sell their home.

A person is deemed to be unable to make a particular decision for himself if he is unable:

*  to understand the information relevant to the decision

*  to retain that information

*  to use or weigh that information as part of the decision making process or

*  to communicate his decision.

If a person does lack the mental capacity to make the decision, this is when their attorneys can step in to make the decision on their behalf.

As your loved one’s dementia progresses their need for practical support will likely increase.  To ensure that there are people with the legal authority to support them, it is essential to prepare LPAs as early as possible.

If you would like to discuss preparing a Lasting Power of Attorney , please click here for our contact details. We would be happy to help.

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