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Power of Attorney

Why your loved one should make a Lasting Power of Attorney

It’s important that your loved one makes a Lasting Power of Attorney (LPA) while they still have capacity. It is possible to make an LPA with a dementia diagnosis, provided the solicitor preparing the paperwork is satisfied that the person understands the purpose of it and what they are signing at that point in time.

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Most people tend to think of LPA as purely related to financial affairs, but there are two types, and both are important for different reasons.

  • Property & Financial LPA – this relates to financial affairs and means that the person appointed to handle your loved one’s affairs (known as the Attorney) can manage their finances. This includes tasks like managing the person’s bank or building society accounts, paying bills, collecting pension benefits and selling their home.

  • Health & Welfare LPA – this means that the attorney can make decisions about the person’s daily care and medical care, including where they live in future. The attorney can only make decisions about the person’s welfare when they no longer have the mental ability to make them for themselves.

How can you tell if the person has mental capacity?

This can be difficult with dementia as mental capacity can vary on different days. There will be some days when the person will be more alert and other days when they seem more confused. If you are unsure whether the person still has mental capacity to make a decision about their health, consider the following:

  • Does the person understand what the consequences of the decision will be?

  • Can they remember the information long enough to make the decision?

If the person can’t make decision right now, they may be able to make it on another day.

If you are unsure whether the person has mental capacity to make decisions, speak to their GP or their healthcare professional.

To make an LPA, the person will need a certificate provider, which is a person who checks that they understand the LPA and is not being pressured into making it. This can be someone the person knows well (and has known for at least two years) but who isn’t related to them, or a professional person such as a GP, solicitor or social worker. The attorney or relatives of the person cannot be a certificate provider.

Who should be an attorney?

The criteria for an attorney is:

  • The person 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 to the person with dementia

  • They can be a friend or someone close to the person

How many attorneys can the person have?

Your loved one can appoint one attorney if they wish, but many people prefer to appoint more than one attorney. Usually, people appoint between one and four.

Having more than one attorney can be useful in the event that one attorney is unwell or spends frequent time away travelling. If the person has more than one, you can specify how you want decisions to be made. They can be:

  • Jointly – decisions must be made together by all attorneys

  • Jointly and severally – some decisions can be made together and some individually. The person making the LPA must specify which decisions they would like made separately and together.

Choosing an attorney

You may wish to be your loved one’s attorney if they are happy with this arrangement. However, anyone can generally be their attorney, provided they are over 18. With a Property & Financial LPA, the attorney can’t be bankrupt or have a debt relief order.

Once an LPA has been made, a new person cannot be added to it, so it’s worth your loved one thinking carefully about who they wish to be their attorney. The only way to have a new attorney is to end the existing LPA and create a new one. However, the person would still need to have capacity to do this.

Your loved one doesn’t have to use a solicitor to create an LPA but it’s worth using one so to minimise the risk of any problems.

How long does it take to make an LPA?

It takes at least 16 weeks to register an LPA at the Office of the Public Guardian. In some cases, it can take even longer. 

If your loved one decides they want to end an LPA, they can do so if they have mental capacity. The original LPA needs to be sent to the Office of the Public Guardian along with a statement which is known as a ‘deed of revocation’. 

For more information, visit https://www.gov.uk/power-of-attorney

 

Sources:

https://www.gov.uk/make-decisions-for-someone/assessing-mental-capacity

https://www.gov.uk/power-of-attorney