The Importance of Setting up a Power of Attorney and understanding the challenges of Dementia and loss of capacity in the elderly
What is dementia? Dementia is a general term for loss of memory, language, problem-solving, and other thinking abilities that are severe enough to interfere with daily life. It is more common in older people. It is a complex and debilitating condition that now affects millions of people worldwide. If you are caring for an elderly parent who has dementia you know how difficult it can be. To give you and your loved one’s peace of mind, please do not delay in setting up a Power of Attorney because the value of having a valid Power of Attorney set up for yourself or your loved one cannot be overestimated.
Common challenges faced by individuals with dementia In the early stages of dementia, many people can enjoy life in the same way as before their diagnosis. As symptoms worsen, the person with dementia may struggle to concentrate or follow conversations, or they may feel anxious, stressed, or scared at not being able to remember things. The person with dementia will need support to cope with the symptoms and changes in their behaviour.
The importance of advance care planning in dementia care It is so important to have a legal plan put in place at the earliest opportunity, particularly while the person with dementia still has mental capacity. Here we explain the various types of Power of Attorney, to illustrate how they can help families facing the complexities of dementia. Recently, Martin Lewis reminded us that setting up a Power of Attorney (POA) for your elderly loved one is more important than a Will. Martin said:
“Just had a call on @Thismorning from an older lady asking about moving bills into her name from her husbands, who she’s caring for as he has early-stage dementia. Yet she hadn’t yet completed a Power of Attorney. This is by far the more urgent consideration. Get it done while someone has the capacity to sign it. Then, if and when they lose their faculties, the transition so you can look after their finances (and health and welfare) for them is relatively easy. If not, leave it too late, and the money may be locked away unless you go to the Court of Protection which is often an expensive and time-consuming nightmare. Better still get a POA when young. I did mine before I was 40. It is in place so that if I lose my faculties in the future at that point (not before) someone can take over.”
What is a Power of Attorney? A Power of Attorney is a legal document that grants someone the authority to make decisions on behalf of a person with dementia when they are no longer able to make those decisions themselves.
The Different Types of Power of Attorney There are two types of power of attorney documents that can be made for:
- Property and Financial Affairs
To make monetary decisions on behalf of the donor and talk to banks and other financial institutions, pay bills, and deal with any property that the donor may live in or own.
- Health and Welfare
To make care decisions, speak to doctors and other healthcare professionals on their behalf, and arrange things to maintain or improve their quality of life.
The Role of an Attorney in Dementia Care If you are appointed as an attorney, you must follow any instructions that the donor has given. You must help them make their own decisions as best they can and make any decisions in their best interest by respecting their human and civil rights. As the named attorney you must make the decisions yourself – you cannot ask someone to make them for you.
If you are not the only named attorney, the donor will have decided how you are to act, i.e.:
- ‘jointly’ – this means all the attorneys must agree on any decisions.
- ‘jointly and severally’ – this means you can make decisions together or on your own.
Your solicitor will guide you regarding setting up the document and the legal terminology regarding the document.
How to Set Up a Power of Attorney You must have the mental capacity to establish a Power of Attorney, and you will need a certificate provider to set up one. A certificate provider is an independent person who signs an LPA to confirm that no fraud or undue pressure has been used to influence the donor. Your solicitor will often act as your certificate provider when they are sure that you have mental capacity. If they have any doubts, or if you have recently been diagnosed with a form of dementia or memory disorder, a certificate of mental capacity may be required by your doctor or consultant.
What Happens if Someone Has Dementia and No Power of Attorney? If the person with dementia has not made a Power of Attorney, at some point they might lose the mental capacity to pay their bills and may not be able to manage their money, which means that they may get behind on utilities or rent. They might forget their PIN number for their bank account so they cannot access their money when needed. You may be required to contact their bank on their behalf, but this might not be possible without a Power of Attorney. Decisions about health, care, and living arrangements will be made by a care professional, the doctor, or the social worker who oversees their treatment or care instead of any family member.
If someone has no Power of Attorney and has dementia and you want to make decisions on that person’s behalf, you will need to apply to the Court of Protection to be appointed as a deputy. There are two types of deputyships – Property and Financial Affairs and Personal Welfare. If you are appointed, you will get a court order defining the scope of your powers. If no relative is available to act as a deputy, the Court of Protection may appoint a professional, such as a solicitor or accountant, to be the deputy. It should be noted that this process takes much longer than setting up a Power of Attorney, and the application fee is considerably more.
Empowering individuals through a Power of Attorney Whether you are a caregiver, or someone concerned about your future, understanding the challenges of dementia and the importance of a POA is essential for safeguarding the well-being and monetary interests of those affected.
Contact Us Today Our solicitors are very experienced in drafting Lasting Powers of Attorney for our clients. Setting up a Power of Attorney and choosing attorneys that you trust to handle your affairs should you lose mental capacity is a big decision. It is natural you may have legal questions as to what powers you are giving your attorneys, and we can address any concerns you may have. Contact us today at 01492 596596/874774 to make an appointment to discuss setting up a Lasting Power of Attorney with your solicitor.