It’s important for a person with dementia to get their paperwork in order as swiftly as possible by setting up Lasting Power of Attorney before it’s too late. Christina Neal talks to Jeff Smith from MB Associates who explains the different types of Lasting Power of Attorney and what to do…
If a loved one has recently been diagnosed with dementia, it’s essential to make sure their legal and financial affairs are in order so that they can hand the responsibility over to you or another member of your family when they are no longer able to cope. The earlier the person can do this, the better –otherwise, it may be too late.
About Lasting Power of Attorney
A diagnosis of dementia won’t necessarily stop a person from setting up Lasting Power of Attorney (LPA), but a legal adviser will need to be satisfied that they understand what they are doing and are clear about their intentions. If the person doesn’t have the required capacity to sign an LPA, then an application will have to be made to the Court of Protection. This is an expensive and lengthy process, so it’s best avoided by acting quickly.
What if the person has lost capacity?
If there is any doubt about the person’s ability to understand what they are signing, they may not be able to proceed without there being medical opinions needed, and the person’s GP may need to act as a Certificate Provider (the person who confirms that the person with dementia understands the nature of the Lasting Power of Attorney.)
The two types of Lasting Power of Attorney
Most people focus on sorting out their finances, and while this is hugely important, it’s also essential to make provision for your long-term health and wellbeing. ‘One thing our experts find quite often is that people don’t always realise there are two types of Lasting Power of Attorney – Property & Financial Affairs and Health & Welfare,’ says Jeff Smith from MB Associates.
Jeff adds: ‘Property & Financial gives the Attorney the authority to deal with and make decisions about finances which includes things like investing money, paying the mortgage, paying bills, arranging repairs to the person’s property, collecting pensions and benefits and selling the person’s home.
‘Health & Welfare means that the Attorney can make decisions about the person’s medical care, where they should live, who they should have contact with and also make decisions about life-saving treatment. However, you can have a Health & Welfare Power of Attorney that doesn’t include instructions about life-saving treatment if you would prefer not to give instructions on this.’
Two different types of Lasting Power of Attorney
It’s also important to understand that there are different types of Lasting Power of Attorney. ‘In addition to Lasting Power of Attorney, there is the older style Enduring Power of Attorney that a person may have set up many years ago. They were phased out in October 2007 but are still valid,’ explains Jeff.
‘However, there can be several issues with this as the Attorney or Replacement Attorneys appointed at the time may have died or be in poor health and may be unable to act on your behalf. Or the person with dementia may not want the people they appointed originally to be their Attorneys now. So it’s important to check whether an Enduring Power of Attorney is still suitable and what the person would want it to be today.’
Jeff adds: ‘The other key point about Enduring Power of Attorney is that it only relates to financial matters, not to Health & Welfare. So if your loved one made an Enduring Power of Attorney some years ago, I recommend they get it reviewed and potentially replaced. They should consider updating to a Lasting Power of Attorney for Property & Financial and adding the Health & Welfare.’
Choose carefully
It’s also important that your loved one thinks very carefully about who they appoint as their Attorney. Is the person(s) they have in mind completely honest? Are their own finances in good shape? If the person has any doubts, they shouldn’t take chances. Fraud is not uncommon, even among family members. The charity, Action on Elder Abuse, reports that 20 per cent of calls to its helpline concern financial abuse. A report by King’s College in London and the National Centre for Social Research in 2007 revealed that 57,000 people aged 66 and over in the UK had suffered financial abuse by a friend, relative or care worker in the past year. Worryingly, nearly 50 per cent of financial abuse was committed by a grown-up son or daughter.
Different methods
One way to minimise risk is to appoint more than one Attorney. At least two would be ideal. It’s also worth noting that there are different ways of appointing your Attorneys when setting up a Lasting Power of Attorney.
The first is Jointly – where the Attorneys must make decisions together and must all sign paperwork.
The second is Jointly & Severally, where one or more person(s) can act on your behalf and that of other Attorneys. Most people choose the latter option simply because of practicalities; people are living all over the country now, and it’s easier. This means that one Attorney can sign the paperwork and make decisions without the other Attorneys present.
The third option is Jointly in respect of some matters and Jointly & Severally in respect of other matters. That’s just a mixture of the two, but you must be very specific as to what decisions are to be jointly made and what decisions are to be made Jointly & Severally.
Can a person revoke a Lasting Power of Attorney?
Once the person has the Lasting Power of Attorney in place, if they sense that something is not right, then they can still protect themselves. While they still have the capacity, they can revoke the Lasting Power of Attorney at any time.
If you are a carer and have concerns about someone abusing their status as an Attorney, then you can contact the Office of the Public Guardian on 0300 456 0300 or by email at opg.safeguardingunit@publicguardian.gsi.gov.uk
For more information on setting up a Lasting Power of Attorney, visit https://www.gov.uk/power-of-attorney
For Help & Advice
Jeff Smith from Monica Bradley Associates can arrange a Lasting Power of Attorney for you or help with making a will. Contact Jeff on 07977 277396 or 020 8652 5240..