Whilst there is increasing awareness of Lasting Powers of Attorney and a greater appreciation for their importance, some people still underestimate the impact of not preparing these documents.
A Lasting Power of Attorney is a legal document that enables you to appoint trusted family, friends or advisors to manage your financial affairs and health and welfare matters, in the event you become too unwell to manage your affairs yourself. An important point to note about Lasting Powers of Attorney is that you can only prepare the documents whilst you have the mental capacity to do so.
Understanding mental capacity when you have dementia
People living with dementia can face unique challenges when it comes to decision making, particularly if their condition progresses and their ability to manage their affairs becomes more difficult. Mental capacity refers to a person’s ability to make specific decisions at the time they need to be made. It is both time-specific and decision-specific, meaning someone may have the capacity to make certain decisions but not others.
Capacity can fluctuate, especially in the early stages of dementia, which is why it’s important to take action early. If you are still able to understand, retain and weigh up relevant information, and communicate your decision, it is likely that you will still be able to make a Power of Attorney with dementia.
Obtaining an LPA for someone with dementia
A Lasting Power of Attorney is crucial in this context, and encouraging conversations about these documents early, even before a diagnosis, is key to ensuring that your affairs are looked after by somebody you trust.
Without these documents in place, your family or friends can face difficulties in supporting you. Next of kin often assume they have the legal right to support their loved ones, however, even close family members do not have a legal right to manage your affairs without these documents.
What happens if you have not prepared a Lasting Power of Attorney and you lose capacity?
Unfortunately, solicitors come across this problem too often. If you do not have a Lasting Power of Attorney in place and are unable to manage your own affairs, then a Deputyship application would have to be made to the Court of Protection. The applicant would be applying to be appointed as your Deputy, which will enable them to make decisions regarding your affairs.
In order to make the application, a number of forms must be completed and submitted to the Court of Protection. The forms would set out the applicant’s information, including your details, your living arrangements, and your financial information. A medical practitioner would also need to complete a medical assessment form and confirm that you lack mental capacity to manage your financial affairs.
The role of a medical professional in assessing capacity
As part of a Deputyship application, or if there is any doubt about your ability to make an LPA, a medical professional must assess and confirm whether you have the mental capacity to understand and sign legal documents. This involves evaluating your understanding of the decisions you are making and your ability to weigh up the consequences. The medical assessment provides important evidence for the Court or for legal professionals involved in drafting a Power of Attorney for someone with dementia.
Once the application is submitted to the Court of Protection, it can take between six and twelve months for the process to be finalised. During this time, relatives chosen in a priority order set out by the Court have to be notified that the applicant is making the application.
As you would not have the capacity to express your wish as to who should act on your behalf, the Court has to consider the evidence provided to them before making a decision. This makes the process a lot more involved, and the application requires much more detail. In turn, this is more time consuming, more expensive and can cause considerable stress for your family.
In addition to the above, the Court of Protection is reluctant to get involved with decisions regarding Health and Welfare. It is very rare that the Court will appoint a Deputy to manage Health and Welfare matters generally on a day-to-day basis. Therefore, if you did not have a Lasting Power of Attorney in relation to Health and Welfare matters, the Court is only likely to get involved if there is a problem or issue that needs to be resolved.
Can someone with dementia sign legal documents?
Yes, someone with dementia can sign legal documents, including a Lasting Power of Attorney, provided they have the mental capacity to do so at the time of signing. Capacity is assessed based on the individual’s ability to understand the document and its implications. It is not the diagnosis of dementia itself that prevents someone from signing, but rather whether their condition has impaired their ability to make and communicate informed decisions.
If there is any doubt about the person's capacity, it is best practice to have a formal capacity assessment carried out by a medical or legal professional and to ensure the signing is witnessed and documented thoroughly.
We hope that by discussing these issues, it will encourage you to take control over who makes future decisions on your behalf if you were to lose mental capacity.
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