There may come a time when someone with dementia is unable to make decisions about their health care and their finances. Everyday tasks involving managing bank accounts, making decisions to pay bills, or even maintaining the day-to-day routine could become difficult or even impossible.
A lasting power of attorney (LPA) is a legal document allowing people to plan ahead by appointing one or more trusted people to assist in making decisions on a person’s behalf. There are two types of LPA; one for Health and Welfare and a separate one for property and financial. Both documents can be drawn up or just one. You can have the same person for both or someone different for each.
Health and welfare LPA
This LPA document enables the person making it to set out in advance what they would like to happen when they are unable to make those decisions around medical care including future care, such as moving into a care home and life sustaining treatment by appointing an attorney to make decisions on their behalf.
This type of LPA can only be used once the person no longer has capacity to make their own decisions.
Property and financial affairs LPA
This allows the appointment of someone to make decisions regarding managing a bank account, paying bills, collecting benefits or pension payments, and buying or selling a property. This type of LPA can be used as soon as the person making it gives permission.
Why would I need an LPA?
People with dementia may come to a point in their lives when they can no longer make their own decisions about health care and finances. This is termed “loss of mental capacity” and is measured by the person’s ability to understand the information needed to make the decision.
Appointing a power of attorney before dementia causes loss of mental capacity ensures that decisions reflecting their stated wishes can be made if the person subsequently loses mental capacity.
Whether someone has the mental capacity to make a decision or not is usually assessed upon each decision and on the circumstances at the particular time. This is because mental capacity can be temporarily lost.
People may assume that if they are in a civil partnership or a marriage that their partner can make decisions about their healthcare or finances, but this is not necessarily the case.
What happens if I lose capacity and do not have an LPA?
If someone loses capacity and has not drawn up an LPA, the person looking to assist and make the decisions on their behalf may have to apply to the Court of Protection to be appointed as a Deputy. This can be a long, expensive, and complex process and the Court makes the decision as to who is appointed. It is therefore strongly recommended that an LPA is set up in advance.
How to set up an LPA
- Choose who you would like to make your decisions for you. They need to be 18 or over. This could be a relative, such as your partner, a friend, or a professional, such as a solicitor. They should be someone that is trusted, manages their own affairs well and is happy to take on the responsibility of an attorney.You can have more than one attorney and they can make decisions together. We can advise you further on who makes an appropriate attorney.
- Complete the LPA form including setting out details of how you would like your attorneys to assist and what should happen should you become incapable of managing your affairs. We can assist and advise you when filling in the LPA form to ensure that your wishes are assured.
- Register the LPA with the Office of the Public Guardian. It usually takes between eight and ten weeks to register an LPA.
If you would like to discuss any points in this article further or are looking for independent advice on creating an LPA, please contact the Wills, Tax & Probate team at Spire Solicitors LLP on 01953 453143.
