Action against dementia; your Lasting Power of Attorney Checklist

Receiving a diagnosis of dementia will be life changing, and understandably there is some hesitation about approaching the subject.  There are currently 900,000 people in the UK living with dementia with this expected to rise with each year that passes.  This is why diagnosis was the theme of this year’s Dementia Action Week; an annual event organised by the Alzheimer’s Society and this year held from 16^th to 22^nd May.  Hannah Goodeve, Solicitor in our Wills, Probate and Estate Planning department, explains more here about Dementia Action Week and how having a Lasting Power of Attorney in place can protect you and your loved ones in the future.

What is Dementia Action Week?

The Alzheimer’s Society arranges Dementia Action Week to encourage people to openly discuss dementia and support those who have been diagnosed or are waiting for a diagnosis and their families. According to the charity, diagnosis rates are currently at a five-year low and so this year they focused on raising awareness of the symptoms of dementia and how to take those first steps towards a diagnosis.

A common misconception is that memory loss can be seen as an expected part of the ageing process when it could indicate an early sign of dementia.  There are naturally reasons why a person may put off seeking a diagnosis as this will have far reaching consequences for them and their loved ones. The purpose of Dementia Action Week this year has been to encourage those who have concerns to speak out, to fully recognise the potential symptoms in addition to memory loss, which could include reduced organisational and co-ordination skills, communication problems and a metallic taste in the mouth, and to understand where they can turn following a diagnosis.

How can a Lasting Power of Attorney prepare me for a dementia diagnosis?

Dementia is one of many reasons why having a Lasting Power of Attorney (LPA) is so important.  Many people delay arranging an LPA, however it is vital to make arrangements while you can.

There are several misconceptions which can put people off sorting their LPA:

1. They believe they are not old enough and that an LPA is something only the very elderly need. This is not the case. When reviewing statistics of dementia alone, there are approximately 42,000 people currently living with early onset dementia, i.e. people who are under 60 who have been diagnosed with dementia.
2. They believe that their spouse, family member or their next of kin has the ability to manage their sole finances, including their bank accounts and/or investments, to sell their property and make decisions regarding their care/medical treatment without one. This is also not the case. Financial institutions will not take instructions from a spouse if they do not have a LPA in place. Doctors and social services will consult with a spouse but they are under no obligation to take forward any opinions of the spouse without an LPA.

Essentially, an LPA is a legal document that allows you as the “donor” to appoint people, known as “Attorneys”, that you trust to manage your affairs should you lose mental capacity to do so in the future, which could happen following a diagnosis of dementia.

There are two types of LPA available to you:

• Property and Financial Affairs LPA:
  • This can be used when you have lost mental capacity or before with your permission.
  • Your Attorneys will make decisions on matters including the sale of any property, managing your bank accounts and investments as well as your day to day arrangements, such as withdrawing cash and paying utility bills.
• Health and Welfare LPA:
  • Unlike the Property and Financial Affairs LPA, this can only be used once you have lost mental capacity.
  • Your Attorneys will make decisions on your behalf regarding your living arrangements, your daily routine and any medical treatments you may require, including life sustaining treatment. This is often very important for somebody who has been diagnosed with dementia as they appreciate that their quality of life may be significantly reduced in the future.

Your Lasting Power of Attorney Checklist: top considerations when writing an LPA

As an important legal document, it is vital that you give your LPA due care and consideration.  You should review the following criteria when planning your LPA:

1. Consider who will be your Attorneys – you can choose up to four Attorneys who need to be over 18 years old, and they should be people who you trust to be able to manage your affairs. They can be either friends, family or you can appoint a person in a professional capacity such as a Solicitor.
2. Whether you will have replacement Attorneys – it is usually recommended to have replacement Attorneys available in case one of your appointed Attorneys cannot fulfil the role when the time comes.
3. How your Attorneys will make decisions if you appoint more than one – in this situation you would choose whether they make all decisions “jointly”, in which case they must all agree, “jointly and severally” allowing them to make decisions either together or independently, or you can have a mixture of the two.
4. The instructions you will give your Attorneys – in addition to the general duties, you can place restrictions on what decisions your Attorneys can and can’t make.
5. The preferences you will give your Attorneys – this would provide your Attorneys with more detail about certain preferences you may have, normally regarding your medical arrangements.
6. Choosing your certificate provider – Your certificate provider cannot be one of your Attorneys, and their role is to sign a document confirming that you are aware of the actions that will be undertaken by your LPA and that you are not being forced into signing it. There are only specific people that can be your certificate provider.
7. Who can witness you signing an LPA – the people who witness you signing your LPA must be over 18 years old and cannot be an Attorney or replacement Attorney. The Attorney’s signatures must also be witnessed; the Attorneys can witness each other’s signature but the donor cannot act as a witness.
8. When you will register your LPA – you do not have to register your LPA as soon as it is written and can do so at a later date. However, this can come with complications if you delay the registration.

What happens if I don’t have an LPA in place?

In the event that you lose your mental capacity either on a permanent or temporary basis, due to an illness such as dementia or a stroke or you have a life changing accident, and there is no LPA in place your loved ones will be required to apply to the Court of Protection for a Deputyship.  This is a long and costly process at a time when you will already be facing disruption and uncertainty.

One of the key benefits of an LPA is that this document will leave you in control of who will manage your affairs if you’re not able to in the future.  The Court of Protection may not appoint a Deputy you would have chosen, and while the application process is ongoing all of your assets and accounts will be frozen, meaning that your loved ones will not be able to process any payments or make other decisions on your behalf, causing more disruption and upset.

Having an LPA is one of the best ways to ensure your wishes will be heard in the future.  To discuss writing your LPA and discussing your plans, contact Hannah or a member of the team on 01722 412000.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.