The theme for this year’s Alzheimer’s Society Dementia Action week is diagnosis.
We are often contacted by individuals and their families following a diagnosis of dementia to prepare Lasting Powers of Attorney (LPA). These are documents that allow someone like a family member or friend to help make decisions for the individual if this is needed in the later stages of dementia.
There are two types of LPA:
- Financial; and
- Health and care.
An LPA for financial decisions allows an attorney to deal with your financial affairs, for example, to pay bills, sell property or investments and to operate bank accounts. Unless it is specified elsewhere in the LPA, the attorney can use the LPA while you still have capacity to make financial decisions yourself. This can be helpful if you are unwell or perhaps need a bit of extra help with your affairs.
An LPA for health and care allows an attorney to make decisions about matters such as your medical treatment, your diet, where you live and how you spend your time. Unlike the LPA for property and financial affairs, your attorney can only use it when you have lost mental capacity to make decisions yourself. If you have given them the authority within the LPA, your attorney can also make decisions about life-sustaining treatment on your behalf.
LPAs can only be made using a specific form and must be registered before they can be used by your attorney(s).
You may be advised at an early stage to make an LPA because you need to understand what you are signing, and this ability can deteriorate as dementia progresses. If you do not have an LPA in place and you lose mental capacity, it may be necessary for someone to make an expensive and time consuming application to the court in order to act on your behalf. This can take several months.
The questions that need to be considered when assessing whether you have capacity to make a LPA include:
- What is a lasting power of attorney?
- Why do you want to make a lasting power of attorney?
- Who are you appointing as attorney(s) and why have you chosen these individuals?
- What is the nature and scope of the powers you are giving to your attorney(s)?
In respect of a financial LPA, you will need to comprehend that your attorney(s) will be able to assume complete authority over your property and finances and will generally be able to do anything with them which you could have done (although there are some restrictions on this authority such as a limited ability to make gifts). You should also be able to be able to appreciate that your attorney’s authority to make decisions will apply as soon as the lasting power is registered (if that is allowed for within the document) and will continue should you lose mental capacity.
In respect of a health and care LPA, in addition to the questions referred to above, you should appreciate that your attorney’s authority to make decisions will apply when you lose capacity (provided the LPA is registered). You should also appreciate that the LPA enables your attorney to make decisions about anything that relates to your health and welfare, for example, medical matters, where you should live and who you should have contact with.
In respect of both types of LPAs, you also need to appreciate that you can only cancel it while you retain capacity to do so. You should also understand the reasonably foreseeable consequences of making or not making the specific LPA or making it on different terms or appointing different people.
At Ellisons, we pride ourselves on providing compassionate advice to individuals who have been affected by dementia and we are determined about sharing our knowledge within the local community. To this end we are involved in the Ipswich Dementia Action Alliance and proud to be sponsoring two new dementia cafes in Ipswich.
Contact our Wills, Trusts and Probate team, who will be able to guide you through the options and advise you on the best way forward.