Dementia and Lasting Power of Attorney

Dementia and Lasting Power of Attorney It’s Importance

When a person is diagnosed with dementia, there may come a time when they are unable to choose the best options for their health and finances. When this occurs the person is no longer deemed to have the mental capacity to make these decisions.

This means that they are unable to understand, weigh up or retain information required to make decisions. Alongside being unable to communicate their decision to others.

When this happens, someone else – usually a caregiver or family member – must make decisions on their behalf. They will usually have to obtain a Power of Attorney to do this.

 

Definition of Power of Attorney

A power of attorney is a legal document (which must be registered) that authorises someone to make healthcare or financial decisions (or both) on behalf of another person. There are various types of powers of attorney, the most common being a Lasting Power of Attorney (LPA).

Dementia and Lasting Power of Attorney

It is important to note that you need to have ‘mental capacity’ to make an LPA and must be over 18 years. This means that you have to understand what you’re signing up for. That is why it’s very important to make an LPA soon after diagnosis. As Dementia is a progressive illness where there might come a time when you’re unable to communicate your wishes.

It also means you can leave your affairs in the hands of someone you know and trust. Whilst having the reassurance all your affairs and treatment will be handled in accordance with your wishes.

Categories of Lasting Power of Attorney

All LPA’s have to be registered at the Office of Public Guardian (OPG). There are two main types of LPA’s, Property and Affairs and Health and Welfare.

The former is responsible for managing your bank account, paying bills, collecting benefits payments and selling your house when the time comes. You can limit the extent to which they can manage your affairs.

It’s important to note that you can choose to allow them to make these decisions when you’re UNABLE to. Alternatively, you can give them the power to do so when you ARE still able to, as a way of giving yourself additional support.

A Health and Welfare attorney make decisions about your medical treatment, your day to day care and even where you live when you are unable to do so.

Additionally, you can give your Health and Welfare Attorney the power to make decisions about life-sustaining treatment on your behalf.

If left too late, obtaining an LPA becomes longer and more complex. In these cases, someone may need to apply to the Court of Protection to be your Deputy.

The main difference between an LPA and a Deputy is that the latter is appointed by the court. Secondly, they are appointed to handle your property and finance affairs.

Your health and welfare decisions will be handled by social or care professionals. They will consider any prior wishes you may have made but their decision will be ‘final’ and based on what they believe is in your best interest.

Advantages of a Lasting Power of Attorney

Making an LPA allows you to begin the conversation with your family and loved one about your affairs now and in the future as your dementia progresses.

Lasting powers of attorney (LPAs) can make life easier for you and those close to you as your dementia progresses.

Making an LPA makes it easier and less complex for your family to handle your affairs. Meaning they won’t have to resort to the complex, time-consuming process of application for being a Deputy. 

Mental Capacity Act

The Mental Capacity Act (MCA) is intended to protect and empower people who do not have the mental capacity to make their own decisions about their care and treatment. [1]

The MCA has been in effect in England and Wales since 2007. The MCA’s primary goal is to promote and protect decision-making within a legal framework. It accomplishes this in two ways:

• By giving people the control to make decisions for themselves whenever possible.
• By protecting people who lack capacity by establishing a flexible framework that places individuals at the centre of the decision-making process.

Conclusion

It is advisable to seek legal counsel to make the best decision on LPA. In addition to being confident that the Attorney appointed will act solely in the best interests of the individual.

Finally, it is vital for a person suffering from dementia to create or update their will. Although it is a complex subject, an individual with a dementia diagnosis can still make or change their will as long as they have the capacity to make decisions and are clear on their intentions.

References

[1] Mental Capacity Act: making decisions, 30 September 2014, https://www.gov.uk/government/collections/mental-capacity-act-making-decisions#mental-capacity-act-code-of-practice

BOOK NOW FOR OUR 17TH MARCH 2022
DEMENTIA AND LASTING POWER OF ATTORNEY (LIVE Q&A) ZOOM EVENT