Legal matters (POA, wills, living wills, rights)

In an ideal world, you would have received an early diagnosis of dementia. In these circumstances plans can be made, involving family and professionals in the discussions.

What is mental capacity?

Mental capacity is about having the ability to make decisions. This includes being able to understand the decision that needs to be made when it needs to be made.

According to the Mental Health Foundation, someone lacking capacity – because of an illness or disability such as dementia – cannot do one or more of the following four things:

  • Understand information given to them about a particular decision;
  • Retain that information long enough to be able to make the decision;
  • Weigh up the information available to make the decision;
  • Communicate their decision.

As dementia progresses it can affect your ability to make certain decisions, although you may have periods of lucidity when you are able to understand the situation and make the relevant decision.

The Mental Capacity Act 2015 protects people in England and Wales who may not have the capacity to make one or more decisions when the decision needs to be made. One of its main principles is that a person must be assumed to have capacity unless it is established that he/she lacks capacity. Whether someone has capacity is considered on a decision by decision basis. For instance, they may not be able to make a decision about travel or selling their home but will be able to decide what they would like for lunch or where ideally they would prefer to live. Speak to a professional about the Mental Capacity Act and ensure it is followed if you need to make specific decisions as your dementia symptoms progress.

What happens if you lose your mental capacity?

If you have assets of your own, such as property or bank accounts, you may find that as your dementia symptoms progress you will need assistance with your financial affairs. There is no automatic right for someone, even a spouse, to take over managing your finances. The situation can become complicated if the right safeguards aren’t in place. You and your loved ones should consider setting up a power of attorney sooner rather than later so you can share your wishes.

A power of attorney is a document that enables you to appoint ‘attorneys’, a trusted friend and/or relative, to manage your financial affairs. This can be if you no longer wish to manage them yourself or if you become incapable of doing so, for example, as the dementia symptoms progress. Usually, at least two people are appointed to act and this can include a professional adviser, such as a solicitor.

Pre-2007, someone may have had an Enduring Power of Attorney – this will still be valid if prepared before October 2007. However, if prepared after that time the document is known as a Lasting Power of Attorney. There are two types of Lasting Power of Attorney - one dealing with welfare decisions and the other dealing with finances. It is not necessary to have both but it is worthwhile considering whether you’d want someone to be able to act in your best interests regarding your finances and healthcare.

Powers of attorney must be registered with the Office of the Public Guardian before they can be used.

In a Lasting Power of Attorney, you can set out your plans for managing your affairs. You can decide whether the attorneys can act together, or independently of each other. You can restrict what they can and can’t deal with. If no restrictions are set, the attorney has the power to access all of your financial affairs, including being able to buy and sell property on your behalf, as long as they are acting in your best interests. If the attorneyship relates to health matters then this person will be able to access your health records and be involved in decision-making with professionals involved in managing health and care. By appointing an attorney you are essentially placing your life in the hands of one or more person enabling them to help make decisions for you. This is why attorneys should be someone you and your loved ones trust and believe will act in your best interests at all times.

When is it too late to get a power of attorney?

It is important that you prepare your power of attorney when you still have the capacity to do so. Living with dementia, you may have periods of lucidity when you are able to understand the power of attorney. As long as you are able to communicate your understanding, someone may be able to sign on your behalf. It is important to get legal advice on these matters though to ensure the power of attorney is completed in your best interests, and is legally binding.

In cases where it is too late for you to complete a Lasting Power of Attorney, an application can be made to the Court of Protection to appoint a deputy.

What is a deputy?

A deputy can be anyone over the age of 18, including relatives or friends. They have a similar role to that of an attorney, and by way of a court order they are able to manage the financial affairs of the person with dementia. To be appointed a deputy, the person needs to submit an application to the Court of Protection setting out their suitability for the role and information about your financial circumstances. This application will go to a judge who will consider whether you lack capacity to manage your own affairs and if so, whether in is in your best interests for the applicant to be appointed their deputy.