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

In an ideal world, your loved one would have received an early diagnosis of dementia. In these circumstances plans can be made, involving family and professionals in the discussions. These are some answers to key questions.

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 a person’s ability to make certain decisions, although they may have periods of lucidity when they 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 a person with dementia loses their mental capacity?

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

A power of attorney is a document that enables ‘attorneys’, to be appointed. A trusted friend and/or relative, to manage a person’s financial affairs. This can be if they no longer wish to manage them themselves or if they 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. Powers of attorney must be registered with the Office of the Public Guardian before they can be used.

In a Lasting Power of Attorney, plans can be set for managing someone’s 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 someone’s financial affairs, including being able to buy and sell property on their behalf, as long as they are acting in their best interests. If the attorneyship relates to health matters then an attorney will be able to access the person’s records and be involved in decision-making with professionals involved in managing health and care.

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

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

In cases where it is too late 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. This application will go to a judge who will consider whether in is in the person with dementia’s best interests for the applicant to be appointed their deputy.