As we enter 2019, there are an estimated 800,000 people in the UK now living with dementia and the indicators are that the number of patients with this life-shortening condition will grow.
A diagnosis of dementia doesn’t just affect the individual but the entire family too. In it’s latter stages, the person living with dementia will rely on family members to look after their affairs, from everyday things through to those long-term considerations such as financial affairs. It is at this point that a family member being able to make decisions on behalf of a person living with dementia becomes absolutely essential.
A Lasting Power of Attorney (commonly referred to as an LPA) allows someone to appoint a trusted individual or loved one (your attorney) to make decisions on your behalf, in case you are not able to do so in the future. There are two types of LPA – one to handle property and financial affairs, and another for health and welfare. The same person can act on your behalf for both types, or you can have two different people to take care of each area individually.
The LPA for your property and financial affairs means that your attorney will deal with issues such as paying rent or mortgages, utility bills, managing your bank account and collecting benefits or pensions. They’ll also be responsible for ensuring that the money is only used in such a way that it benefits you. This type of LPA can be used if physical capacity fails before mental capacity.
A LPA for health and welfare can only be used if you have lost the mental capacity to make your own decisions on things such as care, medical treatment, and moving into a care home. It can be incredibly important for family to be involved in these types of decisions and to ensure that your wishes are carried out, particularly in relation to views such as life-sustaining treatment and where you are to be cared for.
It’s crucial that the person making an LPA completely trusts their chosen attorneys. In most instances, the person taking on the mantle of attorney is a close family member, but professionals such as solicitors and accountants can also be given that responsibility. However, if you do ask a professional to do it for you, they will charge for their time so this needs to be considered carefully. As dementia progresses, they may be called upon more frequently to act in their client’s interest, which can send the costs up considerably.
It is recommended to appoint someone to act as a replacement attorney, if your first choice is unable or unwilling to continue in the role.
It is important to choose your attorneys carefully to ensure that you trust those individuals. This is why it’s often best to appoint more than one attorney and to select whether you wish for them to act “jointly” or “jointly and severally”. The difference is that “jointly” means that all of your attorneys are bound to make decisions together, each and every time. “Jointly and severally” means that one or a combination of your attorneys can act for you at any one time regarding any decision, which is much more flexible.
Once you have appointed your attorneys, they are bound by the Mental Capacity Act, which means they must always act in your best interests, consider your previous and current wishes, and must ensure that all your money is kept entirely separate from their own.
No attorney can take advantage of a dementia patient to benefit themselves. Any evidence of this could lead to an investigation and criminal prosecution. The Office of the Public Guardian has safeguards in place to allow anyone concerned about an attorney’s behaviour to report this directly which will then be followed up and actioned accordingly.
A diagnosis of dementia is devastating. However, once the initial shock has passed, it is time to take action as soon as possible to ensure that your affairs are in order and that you are looked after properly. What you don’t want is the worry of financial issues and questions about your care causing you any more distress.
You should take advice from a solicitor to make sure that any LPA is drafted sufficiently for your needs and that you can consider the options available to you fully. It’s an important and very powerful legal document, so it pays to talk to an expert who can give you peace of mind. Hannah Wallbridge, Solicitor in the Inheritance Protection team can provide further guidance on a drafting a lasting power of attorney and appointing attorneys.