Receiving a diagnosis of dementia can be frightening for both the person concerned and their family.
Alongside questions about health and future care, practical concerns often arise very quickly.
Who will manage the finances if things become more difficult?
Who will pay the bills?
Who will deal with the bank?
Who will be involved in decisions about care?
And one particularly important question:
“Is it too late to make a Lasting Power of Attorney?”
The answer is not necessarily.
A diagnosis of dementia does not automatically mean somebody lacks the mental capacity required to make an LPA.
What matters is whether the person has the necessary capacity to understand and make the relevant decision when the LPA is created.
At Your Will Writers, I help clients and families in Brewood and the surrounding Wolverhampton and South Staffordshire areas understand the importance of planning early.
What Is a Lasting Power of Attorney?
A Lasting Power of Attorney – commonly known as an LPA – allows you to appoint one or more trusted people to make certain decisions on your behalf.
Those people are called attorneys.
There are two types of LPA in England and Wales:
Property and Financial Affairs
and
Health and Welfare.
They deal with different areas of your life.
What Does a Property and Financial Affairs LPA Cover?
This type of LPA can potentially allow attorneys to deal with matters such as:
- Bank accounts
- Paying bills
- Savings
- Investments
- Pensions
- Benefits
- Property
- Other financial affairs
This can become particularly important where somebody’s ability to manage complicated financial matters begins to deteriorate.
What Does a Health and Welfare LPA Cover?
A Health and Welfare LPA can cover decisions involving:
- Medical treatment
- Care arrangements
- Where someone lives
- Day-to-day welfare
- Certain decisions concerning life-sustaining treatment
Attorneys can only make Health and Welfare decisions when the donor lacks capacity to make the particular decision themselves.
Does Dementia Automatically Mean Loss of Capacity?
No.
This is an extremely important point.
A person should not simply be assumed to lack mental capacity because they have been diagnosed with dementia.
Capacity is decision-specific.
Someone in the earlier stages of dementia may still be perfectly capable of understanding many decisions.
They may understand:
- What an LPA is
- Why they are making one
- Who they want to appoint
- What authority they are giving
- What the consequences are
If they have the necessary capacity to make the LPA, a dementia diagnosis alone does not automatically prevent them doing so.
Why Timing Matters
Dementia is generally progressive.
A person who has sufficient capacity today may not necessarily have it at some point in the future.
That is why delaying can create problems.
Families sometimes think:
“We don’t need an LPA yet because Mum is still managing.”
But that is actually an excellent time to consider one.
The purpose of an LPA is to prepare before the person can no longer make the relevant decisions themselves.
Waiting until the family desperately needs authority may mean waiting too long.
What Is Mental Capacity?
Under the Mental Capacity Act 2005, the starting principle is that a person must be assumed to have capacity unless it is established that they lack it.
Broadly, when considering a particular decision, the person needs to be able to:
- Understand relevant information
- Retain that information long enough to make the decision
- Use or weigh the information as part of making the decision
- Communicate their decision
Capacity is not simply determined by someone’s age or medical diagnosis.
What Is the Certificate Provider?
An LPA includes an important safeguard involving a certificate provider.
The certificate provider confirms that, in their opinion, the person making the LPA understands what they are doing and is not being improperly pressured into making it.
This role becomes particularly important where there may be questions surrounding capacity or vulnerability.
In some circumstances, additional professional or medical input may be appropriate.
Can a Family Member Just Make the LPA for Them?
No.
An LPA is made by the donor.
A son or daughter cannot simply decide:
“Dad has dementia, so I’ll make an LPA for him.”
Dad needs to have the necessary capacity to make the LPA himself.
He chooses his attorneys.
He decides what authority they should have.
The document represents his decision, not the family’s.
What If Capacity Has Already Been Lost?
If somebody no longer has the capacity required to make an LPA, it may be too late to create one.
Family members may then need to consider other options.
For financial affairs, this can include applying to the Court of Protection for a deputy to be appointed.
This is very different from an LPA.
With an LPA, you personally choose your attorneys in advance.
With a deputyship application, the court becomes involved after capacity has already been lost.
Why Planning Early Is Easier
Consider two families.
In the first family, both parents arrange LPAs while they are well.
Years later, one develops dementia.
The appropriate registered LPA is already in place.
In the second family, nobody discusses LPAs.
A parent develops advanced dementia and can no longer manage their financial affairs.
Only then does the family investigate what authority they need.
The second family may face a much more complicated situation.
That difference illustrates why an LPA should be regarded as forward planning rather than crisis planning.
Who Should Someone With Dementia Appoint?
The same basic considerations apply to anyone making an LPA.
Attorneys should be people they trust.
They might include:
- Husband or wife
- Partner
- Adult children
- Other relatives
- Trusted friends
The donor should consider whether those people are responsible, capable and likely to act in their best interests.
Should All the Children Be Attorneys?
Not automatically.
Parents often worry about treating children equally.
But an LPA is not an inheritance.
Being appointed as an attorney is a responsibility.
One child may be particularly good with finances.
Another may live abroad.
Another may have a demanding job and little available time.
The right attorneys are the people best suited to the role.
Replacement Attorneys Can Be Important
An LPA might not be needed for many years.
Circumstances can change considerably during that time.
An attorney could:
- Die
- Become ill
- Lose capacity themselves
- Become unwilling to act
- Move abroad
Replacement attorneys can provide valuable backup.
Should Both LPAs Be Considered?
A dementia diagnosis naturally raises concerns about finances.
But health and care decisions may become equally important later.
That is why it is worth considering both:
Property and Financial Affairs LPA
and
Health and Welfare LPA.
They provide different types of protection.
Don’t Assume a Spouse Automatically Has Authority
Another common misunderstanding is:
“Her husband can deal with everything anyway.”
Marriage does not automatically provide unlimited authority over another person’s finances or health decisions.
Banks and other organisations may require proper legal authority.
Likewise, a spouse does not automatically have all the decision-making powers that can be granted under a Health and Welfare LPA.
LPA Help in Brewood
Your Will Writers helps individuals and families in Brewood, Wolverhampton, Codsall, Tettenhall, Perton and Wombourne with Lasting Powers of Attorney.
If somebody has recently received a dementia diagnosis, the important thing is not to panic.
But it is sensible to consider the position sooner rather than later.
The question is not simply whether someone has dementia.
The important question is whether they still have the capacity required to make the LPA.
Have the Conversation Early
Nobody particularly enjoys talking about losing mental capacity.
But putting an LPA in place does not mean you expect something terrible to happen.
It simply means you are deciding:
Who would I trust if I ever needed help?
That is a decision best made by you.
Not by your family after a crisis.
And not after circumstances have taken the choice away.
If you or a family member in Brewood or the surrounding area is considering an LPA following a dementia diagnosis, obtaining appropriate guidance early can make an enormous difference.
A diagnosis does not necessarily mean it is too late – but it is a good reason not to keep putting the conversation off.
This article provides general information only and is not an assessment of any individual’s mental capacity. Capacity must be considered in relation to the individual and the particular decision involved.