Dementia and the Power of Attorney

Wills, Trusts & Estates | 7th September 2017

One of the fastest growing health issues in UK society is the seemingly relentless rise in dementia. This terrifying category of diseases combined with an older population means that it’s never been more important to get your affairs in order as early as possible. But if dementia does take hold, at what point do you hand over responsibility to a nominated person and grant them Power of Attorney over your financial affairs? And what alternatives do you have?

LPAs – there to look after your affairs

Wills are, without doubt, an essential part of the process of later life. It’s not something that people want to think about at any age, but unless you want to leave a financial tangle behind for your bereaved relatives to sort out after you’re gone, it’s crucial to make sure your will is taken care of earlier rather than later. A key part of that could be creating an LPA.

An LPA (or Lasting Power of Attorney) is a document that allows you to appoint one or more people to look after your affairs and make decisions on your behalf when you are no longer able to. These nominees are referred to as attorneys, although they do not necessarily have to have legal experience to qualify, and are usually close relatives or trusted friends. There are two types of LPA:

  • A Health and Welfare LPA can specify what kind of treatment and palliative care you want if you have a degenerative disease like dementia, whether you should be moved into a care home, and specifics concerning your daily routine.
  • A Property and Financial Affairs LPA often gives your attorney access to your finances to manage your affairs when you are unable to. They will be able to access your bank accounts, pay bills, and arrange the sale of your property if you go into a care home.
    LPAs must be registered with the Office of the Public Guardian, which can take up to ten weeks to complete.

LPAs are appointed by a person while they are still capable of making rational decisions concerning their future care, financial matters, and how their estate is to be managed once they are no longer capable of doing it for themselves. There has to be a degree of trust between the sufferer and the person appointed to take responsibility for the instructions laid out in the LPA, whether that’s a Financial or a Health and Welfare agreement.

Court of Protection appointed deputy

There is an alternative to an LPA in the form of a Court of Protection appointed deputy. These are usually appointed by a third party on behalf of a dementia sufferer once they have lost the ability to appoint their own representative.

However, this is rarely offered as an option to an LPA, primarily because in the majority of cases an LPA has been arranged long before a dementia sufferer loses the ability to make considered decisions about their future care. As long as the person nominated to look after the stipulations laid out in the LPA has the trust of the donor, and the donor is mentally capable of making the decision to nominate a person as their LPA executor, there shouldn’t be any problems.

A court-appointed deputy is only really appropriate after a dementia sufferer has lost the ability to make rational decisions for themselves, or there is no one to act as an LPA nominee. They have to provide a full list of assets and annual accounts, as well as a security bond.

Sorting things out sooner rather than later

As power of attorney is often agreed upon before the condition really starts to affect the cognitive ability of the sufferer, it can be months or even years later when the power of attorney status really comes into play. By then, the family dynamic may have dramatically altered, as may the financial situation of the sufferer, especially if they have been forced to go into a care home.

This is why it is so important to sort out not only your will, but any LPAs as early as possible, especially after the diagnosis of a degenerative disease. LPAs can, in fact, bring families closer together, as they ensure the sufferer is cared for properly, and that those granted the Power of Attorney are fully aware of their responsibilities from the outset.

 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Jordan Page

Trainee Solicitor, Trusts & Estates

Jordan studied law at the University of Southampton, graduating in 2013. Whilst completing his LPC on a part time basis, Jordan worked in the firm’s q...

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