WHAT KEY THINGS DO YOU NEED TO CONSIDER?
When someone you care about is increasingly unable to make decisions about their finances or health you may need to consider a Lasting Power of Attorney (LPA).
An LPA is a way of nominating a trusted friend or relative to look after their affairs.
MAKE LASTING POWERS OF ATTORNEY
There are two types of Lasting Powers of Attorney (LPA) that you can apply for:
PROPERTY AND FINANCIAL AFFAIRS LPA
This allows for the appointment of someone (an Attorney) to deal with financial affairs including paying bills and applying for benefits on behalf of the person (the Donor) who is having difficulty managing those financial affairs for themselves. This can be used as soon as it’s registered.
HEALTH AND WELFARE LPA
This allows for the appointment of someone (an Attorney) to deal with decisions about health and welfare. It can include decisions about medication and treatment, where they will live and who will visit them. An attorney can only use this LPA when the Donor has lost the capacity to make these decisions for themselves.
WHAT TO DO NEXT – CAPACITY & CERTIFICATE PROVIDER
An LPA can only be made when the Donor has the mental capacity to understand the document, the powers they are giving to the Attorneys and the implications. In order to put an LPA in place, someone known as a Certificate Provider must confirm that the Donor has the necessary capacity to make an LPA.
The Certificate Provider is quite often the treating consultant at the Memory Clinic. It is often the case that the Memory Clinic will suggest an LPA be put in place once a diagnosis has been given.
WHY REGISTER THE LASTING POWER OF ATTORNEY?
Please bear in mind that an LPA must be registered with the Court before it can be used by the Attorney. This means you’ll need to factor in the time it takes to deal with registration, which is typically 10 – 12 weeks. However, the timescale will vary depending upon each Court’s workload.
APPLYING TO THE COURT OF PROTECTION
If the Certificate Provider is unable to confirm that the Donor has the necessary capacity to put in place an LPA then steps needs to be taken in order to appoint a Deputy. An application will need to be made to the Court of Protection before any financial decisions can be taken. The Court of Protection is the Court that has the power to make decisions relating to people who have lost their mental capacity. If a person lacks capacity to make an LPA, family members or friends can apply to be appointed as a Deputy on their behalf. Once appointed, the Deputy will be able to make financial decisions on behalf of the person who lacks capacity, subject to the overall control of the Court. For example, the Deputy would have the legal authority to sign papers relating to the sale of the property and to then look after the proceeds of sale. If something needs to be completed quickly such as selling the house, special directions might be needed from the Court. As with registering for an LPA, it takes time to appoint a Deputy. This is typically 4 – 6 months, although it can take longer.
WHY IT’S IMPORTANT TO MAKE A WILL
The next thing to consider is to ensure a Will is in place. A Will ensures that when you die, your money and possessions go to the people you choose. If you do not have a Will, the law will dictate who will benefit from your estate. This means it is important to make a Will whilst you still have testamentary capacity. If you have dementia, you may still have testamentary capacity to make or change a Will.
WHAT IF YOU DON’T HAVE TESTAMENTARY CAPACITY?
In this situation, only the Court of Protection can make a Statutory Will on your behalf. Partners/relatives of the person with dementia may also wish to consider making or changing a Will. If you wish to leave your estate to the person with dementia, you should consider setting up a Trust to ensure their income is protected. This will also help to prevent their eligibility for means tested benefits being affected by the inheritance they are due to receive.
WHAT ABOUT YOUR FAMILY HOME?
You can make provision for your property in your Will. Leaving your share of your property in your Will to your children for example, can ensure that they inherit what you have worked hard for. As you get older you may require advice on a number of property transactions in addition to the above. You may also need to consider moving home to find accommodation that’s more suitable for you.