The coronavirus has had an impact on our lives in so many ways. It has made many of us think about our mortality and with that often come thoughts about how can we best prepare ourselves and our families in the event of us losing the capacity to make decisions about our affairs. This is even more pressing an issue for any of us facing dementia. We worry about what will happen if we become unable to make decisions for ourselves (called ‘losing mental capacity’). A Lasting Power of Attorney (LPA) is a powerful legal tool that allows someone of your choosing – a family member or trusted friend – to make those decisions on your behalf, should you not be able to make them yourself.
These decisions are commonly split into two different areas: property and finances, and health and welfare. There are two separate LPAs for these areas. You can choose to have one, or both, and you can also have different attorneys (or the same person) for each one.
It can be a great comfort to know that you have made plans for an unpredictable future, but there are important factors to bear in mind when setting up an LPA.
The first, and trickiest, thing is that LPAs need to be set up before the person with dementia has lost mental capacity, so in the early stages of the disease. Once the person is deemed to have lost capacity, they can no longer give their informed consent for someone else to make their decisions for them. In this case, a family member would have to apply to the Court of Protection to be the loved one’s deputy, which is a long and costly process – far better to get your LPA in place while you can.
The process is relatively simple
The process is a relatively simple one and can be completed by a reputable solicitor. If you chose not to consult a solicitor and wish to complete the forms yourself you should carefully read the detailed notes and guidance that come with them, as any mistakes will mean that the form is rejected when it comes to registering it with the Office of the Public Guardian. You will also need a witness to certify that you made the document freely and without any coercion.
Once the completed forms have been registered, the property and finance LPA can be used even while you still have capacity – you might, for example, want your attorney to handle the day-to-day running of your bank account. This does not mean that they will take over and you will lose control – your wishes will still be taken into consideration. Restrictions on the health and welfare LPA, however, are much tighter. With this document decisions can only be taken on your behalf once you are deemed to have lost capacity – such as being in a coma, or in the advanced stages of dementia.
Making someone your attorney is a big legal decision
Although making someone your attorney is a big legal decision, there are safeguards in place to ensure that attorneys discharge their duties lawfully, and that the person who has lost capacity continues to be protected. You can choose to have more than one attorney so that they have to make decisions jointly, which is a useful resource if you feel you would like to spread out the duties among friends and relatives.
So don’t put it off, speak to your family solicitor, if you don’t have one you can do an online search and identify one that has expertise in Lasting Powers of Attorney. If you don’t have access to the internet, don’t wish to use a solicitor or don’t feel able to complete the forms yourself, the Alzheimer’s Society offers a digital assistance service. The LPA forms are completed on your behalf by a trained volunteer using an online tool created by the government. You can contact the Alzheimer’s Society National Dementia Helpline on 0300 222 1122 to find out more.