Power of Attorney – a gentle guide for those diagnosed with dementia (and their family)

For years, the worry of cancer was one of the UK’s biggest health concerns.

Now, another devastating disease has taken its place at the top of the list of diagnoses we all dread – dementia. Over 800,000 people in the UK now live with dementia, and the indicators are that the number of people with this life-shortening condition will grow.

A diagnosis of dementia does not just affect the person diagnosed, but the entire family too. In the latter stages, you will likely need to rely on family members and carers to look after your affairs, from everyday things like eating, getting up and paying bills, through to those long-term considerations such as where to live, financing care and dealing with property. It is at this point that it is crucial to have a Power of Attorney in place, so that everything is taken care of on your behalf.

What is Power of Attorney?

A Power of Attorney is a legal document that you can use to authorise someone else (the Attorney or Attorneys) to manage your financial or personal affairs on your behalf.The document must be set out in a particular format and some Powers of Attorney need to be registered with the Office of the Public Guardian (OPG) before they can be used.

There are three main kinds of Power of Attorney:

1. General Power of Attorney – the simplest Power of Attorney, which can be used for property and finance but stops when you lose mental capacity
2. Enduring Power of Attorney (EPA) – an old-style Power of Attorney that allows your Attorneys to manage your property and finances. It is no longer possible to create new EPAs, but ones that are already in place remain valid and effective.
3. Lasting Power of Attorney (LPA) – the main Power of Attorney that you should consider. There are two types of LPA – one to handle property and financial affairs, and another for health and welfare issues. The same people can act on your behalf for both types, or you can have different people to take care of each area individually.

The LPA for your property and financial affairs can allow your Attorneys to make financial decisions on your behalf, including managing your bank accounts, paying bills and selling your property. This power can be used straight away (if you want) as well as once you have lost mental capacity.

An LPA for health and welfare can allow your Attorneys to make health decisions on your behalf, including decisions about where you live, the type of care you receive and in some case end of life decisions. However, this power can only be used when you cannot make the decision yourself.

Who can be an Attorney?

It is crucial that you completely trust who you are appointing as your Attorney and that they are good at managing their own affairs. In most instances, the person taking on the mantle of Attorney is a close family member, but professionals such as solicitors and accountants can also be given that responsibility. However, bear in mind that if you do ask a professional to act as your Attorney, they will charge for their time.

Whoever you appoint as Attorney should understand the role they are taking on, including the legal duties and responsibilities they must follow.

What is mental capacity?

‘Mental capacity’ is the ability to make a specific decision at the time that it needs to be made. A lack of mental capacity is when a problem with someone’s mind or brain stops them making a specific decision when they need to.

Don’t leave it too late!

You must have the mental capacity to make an LPA – no one else can make it on your behalf. As such, it is best to get the LPA in place whilst you are fit and well and not leave it to the last minute. The LPA must also be registered before it can be used, which takes 6 – 8 weeks and there is no fast track system!

If you do not have an EPA or Property and Financial Affairs LPA in place and are unable to or lose the mental capacity to manage your financial affairs, no one else will have authority to act on your behalf or access your finances.

Similarly, if you do not have mental capacity and do not have a Health and Welfare LPA then the relevant professional, such as Social Services or a Doctor, will make the decision which you are unable to make – such as where you live or whether you should receive treatment. The decision will be made in your ‘best interest’ and family should be consulted but the relevant professional will be in the driving seat.

There is no automatic right for husbands, wives or civil partners to look after your affairs for you, so do not leave things to chance!

Do I need a solicitor?

A diagnosis of dementia is devastating. However, once the initial shock has passed, it is time to take action to ensure that your affairs are in order and that you are looked after properly. What you do not want is the worry of financial issues and questions about your care causing you or your family any additional distress.

You do not have to seek legal advice, but it is recommended that you ask a lawyer to make sure that any LPA agreement is drawn up properly.

It is an important and very powerful legal document!

A well-designed LPA should give your Attorneys the powers they require with the security you want. LPAs can be designed to include restrictions, instructions and supervisions; this is in addition to the safeguards already in place. Using a specialist lawyer will also provide you and your Attorneys with an explanation as to the extent of those powers and their limits and accompanying responsibilities.