Dementia and Why You Need Lasting Powers of Attorney
Appointing an Attorney when you put Lasting Powers of Attorney in place before mental capacity is lost means that important decisions can still be made about your care, financial and property affairs.
As you get older, you may find that you are experiencing the early signs of dementia and it’s affecting your daily life. It can be a worrying situation for you and your family as it can affect the way you speak, think, feel and behave.
It’s very important to put Lasting Powers of Attorney in place while you’ve still got the mental capacity to do so. If Powers of Attorney are not registered before mental capacity is lost, family members would have to go through the long and expensive process of applying to the Court of Protection in order to deal with your affairs.
For initial legal advice get in touch with our Wills and Trusts Solicitors.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney allows you to appoint someone you trust (called your Attorney) to manage your affairs should you become unable to do so yourself. A Lasting Power of Attorney is a legal document designed to be flexible and can be adapted to suit an individual’s circumstances
- Lasting Powers of Attorney can be used for a variety of decisions, including:
- Managing your finances
- Making decisions about your business if you’re a business owner
- Health and welfare decisions
- Decisions regarding life-sustaining treatment
- Moving into a care home
To discuss putting Lasting Power of Attorney in place, speak to one of our expert Wills and Trusts Solicitors. We will always approach each case with due sensitivity and we care deeply about your welfare and the best interests of your loved ones.
Two types of Lasting Powers of Attorney exist in England and Wales:
- Health and welfare
- Property and finance
A health and welfare Lasting Power of Attorney (LPA) only comes into effect once the person has lost the mental capacity to make decisions for themselves. This will be decided by a trained mental capacity assessor. This is usually a health or social care professional.
A property and financial affairs LPA comes into effect as soon as it is registered with the Office of the Public Guardian (OPG), unless alternative instructions are stated in the LPA document.
Can I Automatically Make Decisions on My Partner’s Behalf?
Not necessarily. If you’re married or in a civil partnership, then it can be easy to think you can make decisions on your partner’s behalf, should they lose the mental capacity to do so.
If an LPA is not registered with the OPG by the time that person comes to be assessed for their mental capacity, then the partner may have to apply through the Court of Protection to become the person’s Deputy.
What to Do Once the LPA is Registered
Once an LPA has been registered, the Attorney/s must follow the Mental Capacity Act when making decisions on behalf of the person who has lost capacity, perhaps with dementia. The Attorney/s must:
- Act in the person’s best interests
- Consider the person’s past and present wishes
- Not take advantage of the person to benefit themselves
- Keep all of the person’s money separate from their own
Failure to abide by these rules means the LPA could be cancelled. The Office of Public Guardian will look into this if they suspect any wrongdoing, and if so the Attorney may find themselves under prosecution.
Unfortunately, in some cases, illnesses and sudden accidents prevent many people from being able to put Lasting Powers of Attorney in place and their loved ones then may need to go through the process of applying to the Court of Protection for a Deputyship Order. Applying to become a Deputy is subject to a much higher level of scrutiny than someone acting under a Lasting Power of Attorney.
For many people who have already registered Lasting Powers of Attorney, these legal documents act much like insurance policies and are something they have and hope not to need, but it’s good to know they are there to be used if necessary.
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