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Power of Attorney and dementia
Being diagnosed with dementia is devastating and life-changing for both the person and their family. As their ability to make decisions deteriorates, one of the first things you should do is set up a Power of Attorney.
Managing their health and their finances will become increasingly challenging and a Power of Attorney will legally safeguard their health and finances. This legal document enables someone to act on their behalf.
But what happens if a person is already diagnosed with dementia? Is it too late? Here’s what you need to know.
What is a Power of Attorney (POA)?
POA is a legal tool enabling a person to appoint someone they trust to manage their financial and/or health affairs if they lose the ability to do so themselves. It can cover:
- Financial matters, such as managing bank accounts, bills and property.
- Health and social care decisions, such as medical treatment and care preferences.
What if a person gets a dementia diagnosis?
There are many different types of dementia and they will progress at different rates.
The key issue here is the mental capacity of the person signing the POA.
The person must be able to understand what they’re signing and the consequences of that action. Being diagnosed with dementia does not automatically mean that person lacks capacity. It all depends on the stage and severity of the condition.
If the person:
- Understands who they are naming as their agent
- Understands what powers they are granting
- Is able to communicate their intentions clearly
Then they may still be considered legally competent to sign a POA.
Note: It’s best to act as soon as you can after a diagnosis while the person is still lucid.
John Roberts, partner and director at Austin Lafferty Solicitors said: “Admittedly, arranging Power of Attorney for someone with dementia is not as straightforward as putting it in place when someone is entirely compos mentis, but it may be possible.
“Given the benefits and peace of mind that having Power of Attorney gives to all parties, it is definitely worth pursuing. Families shouldn’t be deterred by the myth that it is impossible once the ‘D’ word is on the horizon.”
How do you get a POA after a dementia diagnosis?
1. Consult a lawyer
A solicitor who is experienced in arranging Power of Attorney will be able to assess the situation and advise on the right course of action. They may:
- Draft the POA documents,
- Recommend how to evaluate a person’s mental capacity
- Help avoid legal challenges later by making the process robust
“A solicitor will carry out an initial assessment, which typically involves asking simple questions such as date of birth, address, and details of family members.
“They will also explain what a POA is and check whether the individual understands its purpose and implications. Finally, the solicitor will ensure that the decision is being made voluntarily and without coercion,” explained Mr Roberts.
2. Determine mental capacity
You may need to have the person’s mental capacity formally evaluated by a doctor, such as a neurologist or a psychiatrist. The doctor will be able to judge whether the person can legally consent to giving POA.
3. Get the document signed and witnessed
The document must be signed and witnessed. If the person is found to have mental capacity, the process should be straightforward.
If the person is found to lack mental capacity, you will not be able to get them a POA granted.
What if it is too late?
If this is the case, you will have to seek a deputyship order. This gives someone legal powers to make decisions on someone else’s behalf if that person lacks the capacity to make decisions for themselves and they have not made a Lasting or Enduring Power of Attorney.
It can be a lengthy process and you will have to apply to the Court of Protection. The application fee for a deputyship order is £421.
The process can take a minimum of 4-6 months.
In Scotland, you will need to apply for a Guardianship Order.
Ethical things to consider
The main goal is to ensure a person with a dementia diagnosis is not coerced. Their best interests should always be prioritised and protected.
Planning ahead
It’s always best to arrange a POA before any cognitive issues arise. However it is still possible to do this after a dementia diagnosis. But only if the person still has mental capacity.
Planning ahead is the most important thing
Acting early can reduce stress, avoid lengthy applications and court proceedings and ensure that any decisions that are made about a person’s care are in line with they want.
Having a POA can prevent ‘significant difficulties in the future’
John Roberts of Austin Lafferty Solicitors added: “A Power of Attorney is much like an insurance policy – you hope never to need it, but having one in place can prevent significant difficulties in the future. The key message is don’t wait until it’s too late; if you or a loved one has been diagnosed with dementia, seek legal advice as soon as possible to make sure the right protections are in place.
“Since dementia is a progressive condition, delaying a Power of Attorney could mean losing the opportunity to set one up entirely.
“It’s important to note that a Power of Attorney is not just for older people or those who might be vulnerable to dementia. Anyone, at any age and stage of life, can put one in place to ensure that should they be incapacitated through illness or injury, there is a legally appointed person to look after their affairs.”
