One in 14 people aged over 65 has dementia and this rises to one in six for people aged over 80, according to the Alzheimer’s Society.
Receiving a dementia diagnosis can feel frightening and questions can start to arise about your future, such as your care and finances.
While it can be difficult to think about legal planning during such an emotional time, putting the right protections in place and making a Lasting Power of Attorney (LPA) can make sure your wishes are followed through with.
The Department Director of our Wills, trusts and probate team, Helen Jago, explains what an LPA is and whether you can make one after receiving a dementia diagnosis.
What is a Lasting Power of Attorney?
An LPA is often viewed as a legal document that allows someone you trust to make decisions on your behalf if you are no longer able to.
Many people presume that of a Will is the most important legal document they will ever make before they pass. However, an LPA protects you during your lifetime if illness or dementia affects your ability to make decisions independently.
There are two types of LPA in England and Wales that you can choose between.
A Property and Financial Affairs LPA relates to all financial decisions and responsibilities. For example, managing your bank account or selling your home, where you may need the proceeds to cover the cost of your care.
A Health and Welfare LPA covers all medical and daily living decisions. For example, if you end up in a situation where you need life-sustaining treatment, such as being placed on a ventilator, your attorney will have to choose whether or not to authorise it.
Without these documents, your loved ones could face lengthy and expensive court proceedings trying to access your money or make decisions about medical treatment on your behalf.
Determining mental capacity
Mental capacity is a person’s ability to understand, weigh up and communicate decisions at the time when they need to be made.
If you have received a dementia diagnosis, it does not automatically mean you lack mental capacity.
Many people in the early stages of dementia are still perfectly capable of understanding important decisions and signing legal documents, including an LPA.
Dementia is a progressive condition, so many people eventually lose the ability to make certain decisions, but they won’t necessarily decline overnight.
Someone may have clearer, more lucid days where they are fully able to express their wishes and understand the consequences of decisions being made.
Can you make an LPA after losing mental capacity?
Unfortunately, there comes a point for some people living with dementia where they are no longer able to understand or make certain decisions for themselves.
It does then become too late to create an LPA once mental capacity has been lost.
Without an LPA, no one automatically has the legal authority to deal with your finances or personal matters. Not even your next of kin.
To obtain this authority, an application must be made to the Court of Protection to appoint a Deputy.
A medical professional must also complete a formal assessment confirming that you no longer have the mental capacity to manage your affairs yourself.
If the application is approved, the chosen Deputy is given the legal power to make decisions on your behalf.
How can we support your LPA?
We know that conversations about the future are uncomfortable, especially when you are dealing with a progressive condition and the matter can sometimes be time sensitive.
We encourage everyone, particularly those with a dementia diagnosis, to make an LPA as early as possible.
This allows for their needs and wishes to be met by someone they trust should they become unable to decide for themselves.
Our team are here to provide you with the best LPA support and help you start the process of putting your affairs in order.
For further support or advice on LPAs, contact our Wills, trust and probate team.
