Is it possible to create Lasting Powers of Attorney after being diagnosed with dementia?
Whilst we are all getting older, it is not uncommon to think about the future and what we might need, physically, financially and emotionally. With people living longer, it is not inconceivable that our minds might deteriorate, and we may need some additional help and support.
As we are approaching World Alzheimer’s Day which raises awareness on the topic, Bik-ki Wong Partner and Head of Wills, Trusts, and Probate at Myerson Solicitors explains one of the ways in which we can help those who may be developing dementia through Lasting Powers of Attorney.
A common misconception is that once someone is diagnosed with dementia, such as Alzheimer’s, it is too late to establish Lasting Powers of Attorney (LPAs).
However, this is not necessarily true. Obviously, the best option would be to have LPAs in place much earlier than on diagnosis but better late than never.
A diagnosis does not automatically prevent someone from making LPAs; rather, it should prompt them to seek professional advice and arrange these vital documents before it is too late.
This article will outline the importance of LPAs and provide a practical example of making these arrangements after a diagnosis or when capacity may be questioned.
What Are Lasting Powers of Attorney?
Lasting Powers of Attorney, often called ‘LPAs’, are legal documents that allow you to appoint one or more individuals as ‘attorneys’ to act on your behalf if you lose the ability to make decisions for yourself.
There are two types of LPAs: one for Property and Financial Affairs and another for Health and Welfare.
Each covers different areas of decision-making, and you may appoint different attorneys for each type.
An attorney for Property and Financial Affairs would manage matters such as handling your finances, managing investments, collecting your pension, selling property, and paying bills.
On the other hand, a Health and Welfare attorney would make decisions about where you live, your diet, and any medical treatments you may receive up to and including life sustaining treatment.
Both documents must be registered with the court (known in England and Wales as the Office of the Public Guardian), before they can be used but you can allow your Property and Financial Affairs attorney to assist you even while you still have capacity -perhaps if you face mobility or health challenges or find it difficult to handle tasks like speaking on the phone.
However, the Health and Welfare attorney can only act once you have lost mental capacity.
Lasting Powers of Attorney are an upgrade to the older style Enduring Powers of Attorney which were more restrictive in that they only ever covered property and financial affairs and once you are deemed to have lost the ability to deal with your financial affairs on a day-to-day basis, the document would have to be registered and the attorneys would take over making all the financial decisions.
LPAs are more flexible as mental capacity is assessed on the specific decisions and does allow for fluctuations of capacity and the possibility of regaining mental capacity. For example, someone with a Urinary Tract Infection can suddenly become confused (also known as delirium) but upon recovery, the symptoms can completely disappear leaving the individual perfectly capable of managing their own affairs.
Dementia Diagnosis: Is It Too Late to Make LPAs?
Not necessarily.
To create LPAs, an individual must understand the nature, content, and purpose of the documents and be able to make an informed decision about what powers they are granting and to whom.
While dementia may affect someone’s ability to meet these requirements, capacity is not an all-or-nothing issue.
A person may have the necessary capacity one day rather than the next, so a thorough case-by-case evaluation is essential. In some cases, it could be that a person is more alert first thing in the morning after a good night’s sleep and taking any medication but becomes less alert in the late afternoon or evening.
It is crucial to seek professional advice to create LPAs as early as possible, especially after a dementia diagnosis, as these conditions are generally degenerative.
Creating LPAs After a Dementia Diagnosis: A Practical Example
Let’s take Mr and Mrs Smith as an example.
They are married, and while Mrs Smith has been experiencing some forgetfulness and occasional confusion, she has recently been diagnosed with early-stage Alzheimer’s.
Neither of them currently have LPAs in place.
Mr and Mrs Smith arrange a meeting with their solicitor.
During the consultation, the solicitor engages with them to assess their capacity, particularly Mrs Smith’s.
They discuss various aspects of their lives, such as their family, finances (assets, liabilities, income, and expenditure), lifestyles, and plans for the future.
After this, the solicitor explains the purpose of LPAs and how the documents can be structured. Mr and Mrs Smith then provide their instructions and reasoning.
If the solicitor is satisfied that Mrs Smith and Mr Smith fully understand the documents and have the capacity to make the LPAs, the solicitor will proceed to draft them and schedule a second meeting to sign and register them.
Suppose the solicitor has doubts about Mrs Smith’s capacity. In that case, they will consult a medical professional, such as her doctor or a capacity assessor, to confirm whether she can make the LPAs. In some cases, the doctor will also act as witness when the documents are ready to sign.
Once the documents have been signed by Mr and Mrs Smith, their chosen attorney will need to sign before they are registered which can take up to 16 weeks (as at the date of this article). It is therefore important to ensure that everything is done correctly and as soon as possible. If there is a mistake, a new document may be required and Mrs Smith’s mental capacity may have deteriorated further.
When Mrs Smith eventually loses the ability to make decisions, her chosen attorneys can manage her finances, make decisions about her living arrangements, pay for her care, and decide on her medical treatments.
What If a Person Can No Longer Make LPAs?
If it is too late and the person can no longer create LPAs, an application to the Court of Protection will be necessary.
For example, if Mr and Mrs Smith had delayed seeking legal advice for 18 months and Mrs Smith lost her capacity during this time, the solicitor would advise Mr Smith to apply to the Court of Protection to be appointed as her deputy.
The process is more expensive than creating LPAs as more information is required for the court to consider the appropriateness of the appointment, and the court process takes significantly longer (registration time is a minimum of four to six months if not contested and the court does not raise enquiries). During this time, Mr Smith would not be able to access Mrs Smith’s bank accounts or manage her affairs.
Once appointed as a deputy, Mr Smith would have a more burdensome responsibility, having to report annually to the Court regarding Mrs Smith’s finances and decisions made on her behalf.
The Court is often hesitant to appoint deputies for Health and Welfare matters, meaning decisions would have to be referred to the Court individually as they arise.
This process is costly and causes delays, leaving Mr Smith without control over decisions regarding Mrs Smith’s health, medical treatment, and general care.
All of this could have been avoided if Mr and Mrs Smith had created their LPAs either before any signs of dementia appeared or as soon as the diagnosis was made.
Where Do I Start with Creating My LPAs?
It is advisable to set up LPAs as early as possible.
Every adult should consider having them in place, as many people mistakenly believe their spouse will automatically be able to manage their affairs if they lose capacity.
This is not the case.
LPAs are essential to protect your finances and welfare, regardless of your age or health.
To set up a Lasting Power of Attorney it is recommended you contact a specialist Lasting Power of Attorney Solicitor to help guide you through the process.
