It’s recommended that you get Lasting Power of Attorney prepared and registered straight away, while the person with dementia still has capacity.
If a solicitor thinks they lack mental capacity, you might not be able to proceed with the Lasting Power of Attorney, so don’t hesitate to start the process. There are two types of Lasting Power of Attorney:
Property & Finance – If the person with dementia appoints you to be their attorney for Property & Finance, this means you can make decisions on matters such as selling their property, investing money on their behalf and paying their bills. You can apply for Lasting Power of Attorney on your own, or the person with dementia can have more than one person acting on their behalf. A solicitor will usually recommend that the person appoints at least two attorneys or alternatively, one attorney and a replacement attorney. If you have siblings, you might wish to share the responsibility so that you can make decisions between all of you. It’s essential that you trust the other attorneys and feel sure that they have the person’s best interests at heart.
With Property & Finance LPA, the person with dementia can delegate decisions to be made on their behalf while they still have capacity. They may choose to pass on decisions to their attorney(s) if they are feeling tired or unwell and don’t feel able to cope with the burden of making those decisions.
If you are unsure about whether or not the person with dementia still has capacity to make a Lasting Power of Attorney, it’s worth seeing a solicitor. The person with dementia must understand what they are signing at that particular moment, and be able to explain to the solicitor if necessary the purpose of what they are doing.
Health & Welfare – Again, the person with dementia will appoint you or you and several other people to be attorneys, to make decisions about their health and wellbeing. This can include decisions about their medical care and where they live. It’s an essential document to have for the future and you must act with the best of intentions and with the person’s wishes in mind. So for instance, if they tell you they don’t want to go into a care home in future, you have a duty to do all you can to ensure that this doesn’t happen, unless it’s the only way to keep them safe after all other options have been explored and deemed unsuitable.
Unlike Property & Finance LPA, where the person with dementia can ask the attorney to make decisions for them while they still have capacity, with Health & Welfare LPA, the person with dementia must make their own decisions while they still have capacity.
Many people tend to focus on setting up Property & Finance LPA but both are important. There is no limit to the number of attorneys the person can have and they can choose different attorneys for each one. The roles are very different – some people may be better at making financial decisions than making choices related to health.
There are three different ways of setting up a Lasting Power of Attorney. They are:
Jointly – The attorneys have to make decisions together and must all sign paperwork together.
Jointly & Severally – Where one or more person(s) can act on behalf of the other attorneys. Many people choose this option. This means that one attorney can sign the paperwork and make decisions without the other attorneys present. This could work well if one of the attorneys lives abroad or frequently works away from home.
Jointly and Jointly & Severally – This means Jointly in respect of some matters and Jointly & Severally in respect of other matters. But you have to be very specific about what matters are going to be Joint and what matters will be Joint & Several.
The person doesn’t have to use a solicitor to set up a Lasting Power of Attorney. You can make one online using the Office of the Public Guardian’s website. Click here for more information https://www.gov.uk/government/collections/lasting-power-of-attorney-forms.
If they use a solicitor, once the paperwork has been drawn up and signed, it must be sent to the Office of the Public Guardian, as the Power of Attorney needs to be registered. It takes around six to eight weeks for this to happen.
What happens the person doesn’t have mental capacity?
If a solicitor is in any doubt about the person’s ability to understand what they are signing and what the Lasting Power of Attorney means, they won’t be able to proceed. Sometimes it can be difficult to tell if the person has capacity and the solicitor may seek medical opinions and write to the person’s GP. They may ask the GP to act as a Certificate Provider (the person who confirms that they understand the nature of the Lasting Power of Attorney).
It’s usually in the later stages of dementia that a person would be less likely to have capacity, and hopefully they won’t have left it that long. If they are considered to be lacking capacity, an application to the Court of Protection will need to be made for a deputy to be appointed. This means that the court has jurisdiction to appoint someone to make decisions for the person with dementia. The person is called a deputy and the role is the same – the difference is that the court, rather than the person with dementia, will appoint the deputy. The process is time-consuming and expensive. It can take up to six months.
For more information on making a Lasting Power of Attorney, go to the above link or call the Office of the Public Guardian on 0300 456 0300.