Contrary to popular belief, your loved one can make an LPA with a dementia diagnosis, provided their solicitor or the person preparing it is satisfied they understand what they are doing. They need to show they are clear about their intentions. Even if they forget about it later, the solicitor must feel confident that they understand what they are signing at that moment in time and why.
Your loved one can have one attorney or more than one. Most people have between one and four. If you are the person’s sole carer and you are happy to take on the responsibility alone, you can do so if they are happy for you to be the sole attorney.
To make an LPA, the person will need a certificate provider – someone who checks that the person understands the LPA and is not being pressured into creating it. This can be someone who knows the person well but isn’t related to them. It can also be a professional person, including a GP, solicitor or social worker.
Types of Lasting Power of Attorney
There are two types of Lasting Power of Attorney. Both are important as they relate to the person’s finances and health:
Property & Financial LPA – the Attorney has the authority to deal with the person’s finances, including investing money, paying the mortgage, paying bills, arranging repairs to the property, collecting pensions and benefits, and selling the person’s home.
Health & Welfare LPA – the Attorney can make decisions about the person’s medical care, where they live and make decisions about life-saving treatment. Your loved one can have a Health & Welfare Power of Attorney that doesn’t include instructions about life-saving treatment if they prefer not to give instructions on this.
What if the person doesn’t make an LPA?
If the person doesn’t have the required capacity to sign an LPA or doesn’t want to, an application will have to be made to the Court of Protection. This is an expensive and lengthy process, so it’s best avoided.
Who can be an Attorney?
An attorney must be at least 18 years old and have mental capacity. They can be a relative or spouse, but they don’t have to be related. They can also be a friend or a professional person like a solicitor.
Your loved one must carefully consider who they appoint as their attorney. Is the person they have in mind completely honest? Are their own finances healthy? This is hugely important if they may end up managing the finances of a loved one.
One way to minimise risk is to appoint more than one attorney. At least two would be ideal in case of illness. It’s also worth noting that there are different ways of appointing attorneys when setting up a Lasting Power of Attorney.
However, if the person prefers to have only one attorney, this is also possible. If you are the person’s sole carer and you are happy to take on the responsibility alone, you can do so if they are happy for you to be the sole attorney.
The different types of agreements are:
Jointly – the Attorneys must make decisions together and must all sign paperwork.
Jointly & Severally – one or more person(s) can act on your loved one’s behalf and make decisions either jointly or on their own.
Most people choose the Jointly & Severally option because it can be easier, especially if one of the attorneys travels frequently and isn’t always around. This means that one attorney can sign the paperwork and make decisions without the other attorney present.
Another option is jointly in respect of some matters and Jointly and severally for others. This is a combination of the two, but the person must be very clear about which decisions should be jointly made and which ones should be Jointly and severally.
How long does it take to register an LPA?
Registering a Lasting Power of Attorney can take at least 16 weeks. In some cases, it can take even longer. The sooner your loved one starts the process, the better. It costs £82 to register an LPA plus whatever you pay a solicitor to prepare one.
How to cancel an LPA
Your loved one can cancel an LPA or make a new one. They simply need to write to the Office of the Public Guardian, returning the original LPA and including a written statement called a ‘deed of revocation’. The precise wording required for the deed can be found on the government’s website.
https://www.gov.uk/power-of-attorney/end
Seek advice
It’s wise for your loved one to seek advice from a solicitor and use one to create an LPA for them. While you can create one independently, your loved one is less likely to have problems later on if you use a solicitor. If you have any questions about setting up an LPA, you or your loved one can also contact the Office of the Public Guardian on 0300 456 0300 or email customerservices@publicguardian.gov.uk
Good to know:
The process for LPA is different in Scotland and Northern Ireland.
Sources:
Government’s website:
https://www.gov.uk/power-of-attorney
https://www.gov.uk/lasting-power-attorney-duties#:~:text=If%20you're%20not%20the,together%20or%20on%20your%20own
Dementia Help:
https://dementiahelpuk.com/lasting-power-of-attorney-explained/