It is a common misconception that once a person has been diagnosed with a form of dementia, whether that be Alzheimer’s or otherwise, it is too late for them to make Lasting Powers of Attorney.
It should be emphasised that such a diagnosis is not an automatic bar to a person making Lasting Powers of Attorney and should instead operate as a prompt to seek professional help to put the documents in place before it is too late.
Our Wills, Trusts and Probate Solicitors consider the importance of these documents and outline a practical example of making LPAs once a diagnosis has been given or capacity issues are at play.
What are Lasting Powers of Attorney?
Lasting Powers of Attorney, commonly shortened to ‘LPAs’, are documents that allow you to appoint one or more individuals as attorneys to act on your behalf when you cannot make decisions for yourself.
There are two different types of LPA: one for Property and Financial Affairs and one for Health and Welfare.
They cover different decisions, and you can have different attorneys for each type.
A property and financial affairs attorney would manage your finances and investments, collect your pension for you, sell property, and pay bills, whereas a health and welfare attorney would make decisions about where you live, your diet, and what medical treatments you receive.
You can choose to allow your property and finance attorney to assist you while you still have the capacity, perhaps if you are struggling with your mobility or health or have difficulty talking on the phone.
However, the health and welfare attorney can only act once you have lost the mental capacity to make your own decisions.
A dementia diagnosis has been given. Is it too late to make LPAs?
Not necessarily.
To make LPAs, a person must understand the nature of the documents, their content and purpose, and make an informed decision about the powers they are granting and to whom.
A dementia diagnosis can inhibit a person’s ability to meet this criterion, but capacity is not a black-and-white concept.
A person could have the requisite capacity one day or hour and not the next, so a case-by-case assessment is needed.
It is important to note that these conditions are usually degenerative.
Therefore, it is vital to seek professional advice to get the LPAs drawn up whilst the individual still has the relevant capacity.
LPAs after a dementia diagnosis: a practical example
Mr and Mrs Myerson are married. Mrs Myerson has become a little forgetful and can get confused at times.
Mrs Myerson’s doctor has diagnosed her with Alzheimer’s in its early stages. Neither Mr. nor Mrs. Myerson has LPAs.
Mr and Mrs Myerson make an appointment with their Solicitor. Their Solicitor chats with Mr and Mrs Myerson to understand their capacity, particularly for Mrs Myerson.
They discuss family members, finances (assets, liabilities, income, and expenditures), recent trips abroad, and plans for the upcoming holidays.
The Solicitor then talks to Mr and Mrs Myerson about the purposes of the LPAs and the various options for structuring the documents.
Mr and Mrs Myerson then convey their instructions and their reasoning.
If the Solicitor is satisfied that Mrs Myerson (as well as Mr Myerson) understands the documents and has the necessary capacity to make the LPAs, the Solicitor will draft the documents, arrange a second meeting to sign them and prepare for them to be registered.
If the Solicitor has any doubts, they will refer to a medical professional and ask Mrs Myerson’s Doctor or a capacity assessor to provide their opinion.
If the medical professional is satisfied, the Solicitor will draft the documents, arrange a second meeting to sign them and prepare them to be registered.
When Mrs Myerson cannot make decisions for herself, her chosen attorneys will be able to look after her finances, make decisions about where she should live (along with paying for any care), and decide what treatments she should have.
What happens if a person is no longer able to make LPAs?
On some occasions, LPAs are made too late, and the person does not have the requisite capacity. Instead, an application to the Court of Protection must be made.
Using the example above, if Mr and Mrs Myerson had decided to wait 18 months before contacting their Solicitor due to various other matters keeping them busy, Mrs Myerson could have lost the necessary capacity during this period.
The Solicitor would advise Mr Myerson that he (along with other relevant persons such as children, if appropriate) could apply to the Court of Protection to be appointed as Mrs Myerson’s deputy.
The Solicitor’s fees would be significantly higher than for the LPAs, and due to delays at the Court, obtaining the document would take twice as long. Mr Myerson cannot access any of Mrs Myerson’s sole accounts until the Court grants the order.
Once Mr Myerson is appointed deputy, he will have a much more onerous duty to report to the Court annually in detail on Mrs Myerson’s finances and the decisions he has made regarding them.
The Court is often also reluctant to appoint individuals as general deputy for health and welfare decisions and may ask that an application to the Court be made for decisions as they arise.
This is costly and causes delay during which Mr Myerson does not have any control over where Mrs Myerson resides, or the decisions made in relation to her health, medical treatment and general welfare.
This could have been avoided if Mr and Mrs Myerson had had LPAs in place (a) before Mrs Myerson showed any signs of dementia and (b) as soon as the diagnosis was given.
I want to put my LPAs in place as soon as possible, where do I start?
LPAs are best considered as early as possible; every adult should have them.
Often, people wrongly believe their spouse can manage their assets and make decisions for them once they lose capacity.
This is not the case, and these documents are vital to ensure that your finances and your welfare are protected, regardless of your age and regardless of whether you have been diagnosed with dementia.
Contact our Wills, Trusts and Probate Lawyers
The professionals in our Wills, Trusts, and Probate team can assist in advising you on your Lasting Power of Attorney and drafting and registering the documents.
Contact our team on:
01619414000
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Hannah Owens
Associate
Hannah has 2 years of experience acting as a Wills, Trusts, and Probate solicitor. Hannah assists clients in dealing with taxable estates including cross-border estates, Trusts and estate planning, as well as advising on Court of Protection applications and Powers of Attorney.
About Hannah Owens