If you have been diagnosed with dementia, or have a family member living with the condition, there may be considerations about what will happen to the home, finances, and other assets if the condition progresses and mental capacity is lost. Setting up Lasting Powers of Attorney (LPAs) early on can provide peace of mind, allowing trusted individuals to act on your behalf if you are no longer able to do so yourself.
However, many individuals, or those caring for loved ones, often face uncertainty about when and how to set up an LPA, or whether it is still possible if mental capacity has already begun to decline. Below, we will explain LPAs and the legal criteria for mental capacity to make one, outline the process for setting one up, and discuss alternative actions available if someone no longer has capacity.
What is a Lasting Power of Attorney (LPA)?
A Lasting Powers of Attorney (LPA) is a legal document that allows someone to appoint trusted individuals, known as ‘attorneys’, to make decisions on their behalf if they lose the ability to do so themselves. There are two types of LPAs: one for property and financial affairs, and another for health and welfare.
For someone with dementia, or if a family member has dementia, setting up an LPA early is important because dementia can gradually affect mental capacity. Having an LPA in place ensures trusted people can manage their affairs and care according to the person’s wishes when they can no longer decide independently. This helps guarantee that their preferences are respected and provides peace of mind regarding future care and financial management.
Legal Criteria for Mental Capacity to Make an LPA
There is legal criteria for mental capacity required when making an LPA. This is under the Mental Capacity Act 2005, which involves the person understanding the nature and purpose of the LPA, the decisions it authorises, and being able to clearly communicate their wishes. Below is a breakdown of the legal criteria to help provide a better understanding of it:
- Understanding the LPA – A person needs to be able to fully comprehend what an LPA entails, including the purpose of the document and the powers given to their attorneys. This understanding ensures they’re making an informed choice about who will act on their behalf.
- Consequences of Appointing – They need to recognise the possible outcomes of appointing attorneys, including how decisions made on their behalf may affect their finances, health, and welfare. Awareness of these consequences is crucial to making an informed and responsible decision.
- Free from Pressure – They must be able to decide independently, without being coerced or manipulated by others. This means their decision to create an LPA and appoint attorneys is voluntary and reflects their true wishes without external pressure.
- Communicating Decisions – They must still have the ability to express their decisions clearly, whether verbally, in writing, or through other methods such as gestures or technology. Effective communication is essential to confirm their intentions and ensure the LPA is valid.
The Process of Setting Up an LPA While Capacity Remains
It is important to create an LPA early on, ideally when someone is diagnosed with dementia but still has the capacity to make decisions. If it is left until later, mental capacity may lessen over time, preventing someone from being able to set up an LPA. The first step in setting up an LPA is choosing whether a property and financial affairs, or a health and welfare LPA is needed. They then must select one or more trusted attorneys and complete the official LPA forms.
The LPA must be witnessed and certified by a suitable professional. Following this, it needs to be registered with the Office of the Public Guardian before it can be used. Many people choose to work with professionals such as Gillhams Solicitors for setting up an LPA because they offer expert legal advice and support to ensure it is set up correctly, giving confidence that all legal requirements are properly handled.
Alternative Legal Actions if Capacity is Lost
If someone with dementia loses mental capacity without having set up a LPA, they are unable to make decisions about their finances or health. In this situation, family members or carers cannot legally manage their affairs without formal authority. This can cause delays and complications in managing the person’s welfare, property, and financial matters, making it difficult to ensure their needs are met effectively. However in this situation, an application for deputyship can be made.
Applying for Deputyship
To manage affairs when no LPA exists, an application for deputyship can be made to the Court of Protection. A deputy is appointed to make decisions on behalf of the person who lacks capacity, covering finances, property, or health depending on the court’s order. The process can be lengthy and requires careful documentation, but it provides legal authority to manage the individual’s affairs responsibly when an LPA is not in place.
If you are seeking support with setting up or managing a Lasting Power of Attorney (LPA) for yourself or a loved one with dementia, Gillhams Solicitors are here to help. We can help establish new LPAs, oversee existing ones, and guide clients through the deputyship application process, ensuring that their wishes are upheld. We provide assurance that legal and financial issues will be addressed correctly if mental capacity diminishes, either for yourself or a loved one with dementia.
To learn more about how we can assist you with LPAs for those experiencing declining mental capacity, please get in touch by completing our online enquiry form, emailing solicitors@gillhams.com, or calling directly on 020 8965 4266.
