Power of Attorney & Protecting the Rights of People with Dementia

Mental capacity means the person can understand, remember, and use information to make important decisions. It can be difficult to ascertain and is protected by the Mental Capacity Act (MCA), which ensures decisions made on behalf of someone who has lost capacity are in their best interests.

A Lasting Power of Attorney (LPA) allows someone you trust to make decisions on your behalf when you are no longer able to do so. It must be set up while you still have mental capacity, making it essential to act quickly if you receive a dementia diagnosis.

Your spouse or civil partner cannot automatically make decisions on your behalf without an LPA. It is essential to set up an LPA to allow them to manage bank accounts, pensions, and make care decisions if you lose capacity.

For assistance with setting up an LPA, contact Symes Bains Broomer at 01724 281616 or info@sbblaw.com.

A diagnosis of dementia is not the same as losing legal capacity. Many people in the early stages of the disease retain full capacity to make decisions about money, health and care. That window is the critical moment to put a Lasting Power of Attorney in place.

Once capacity is lost, an LPA can no longer be signed. The family must instead apply to the Court of Protection for a deputyship order. Deputyship is slower (often 6 to 12 months), more expensive, requires ongoing reporting to the Office of the Public Guardian, and the deputy has narrower powers than an attorney under an LPA.

There are two separate LPA documents and most people need both.

The Property and Financial Affairs LPA gives the attorney authority to manage bank accounts, pay bills, sell investments, deal with the home and so on. This can be used while the donor still has capacity, with their consent, which is helpful for elderly clients who find banking difficult.

The Health and Welfare LPA covers decisions about medical treatment, care home admission, daily routines and end of life care. This LPA can only be used once the donor has lost capacity.

The choice of attorney matters enormously. The attorney has significant power over a vulnerable person's life. Most clients appoint one or two family members, often with a third as a replacement. Where there is no suitable family member, a professional attorney (a solicitor) can be appointed.

When appointing more than one attorney, you must decide whether they act jointly (all must agree), jointly and severally (any one can act), or jointly for some decisions and severally for others. The right choice depends on the family dynamic.

If a relative has been recently diagnosed but still has capacity, act quickly but not in panic. The LPA must reflect their genuine wishes and be signed while they understand what they are signing. Where capacity is borderline, a solicitor should follow the so-called golden rule and arrange for a doctor to confirm capacity at the time of signing. This protects the LPA from later challenge.

What happens if no LPA is in place?

The family must apply to the Court of Protection for deputyship, which is slower, more expensive and more restrictive than an LPA.

How long does an LPA take to set up?

Drafting takes about a week. Registration with the Office of the Public Guardian takes 8 to 10 weeks. The LPA is not usable until registered.

How much does an LPA cost?

Most clients pay a fixed fee for drafting and the OPG registration fee on top. Reduced or waived registration fees are available for clients on a low income.