Dementia is a progressive condition. As such, there will come a point where it is no longer possible, safe or reliable for an individual to make a range of decisions concerning things such as their healthcare, care provision and finances. A lasting power of attorney enables someone else, usually a close family member, to make the decisions on the individual’s behalf and in their best interests.
Let’s first explain a few important things about it, before we move onto how to get power of attorney for an elderly parent with dementia.
A lasting power of attorney (LPA) is the name of the legal document in England and Wales which appoints one (or sometimes more) people to be an individual’s ‘attorney’. The attorney can then make decisions on their behalf. These decisions should always be made in the person’s best interests.
Two types of LPA exist:
Health and welfare LPA
This enables the attorney to make decisions around healthcare, care needs and treatment.
Property and financial affairs LPA
This enables the attorney to make decisions around financial accounts, buying and selling property, benefits and pensions.
An individual can have both drawn up or just one.
In the event that a person can no long make decisions for themselves, this is called ‘loss of mental capacity’. Unfortunately, this is an expected part of dementia progression. It is much easier for decisions to be in line with the individual’s wishes if a LPA has been made.
A LPA must be made before an individual loses mental capacity. This means that the individual living with dementia has the opportunity to establish their preferences about their future affairs whilst they still can. This enables the potential attorney to understand the individual’s wishes and they can then later act according to those wishes and in the individual’s best interests.
There is nothing to be lost with making someone an attorney in advance as they cannot act in position as attorney until after the individual has been assessed to have lost mental capacity. With a property and financial affairs LPA, the attorney may act on behalf of the individual before loss of mental capacity if the individual asks them to. Conversely, not making an adult child your attorney before loss of mental capacity can make things considerably more difficult.
Unfortunately, if the individual is already deemed to have lost mental capacity then it is too late to make a LPA.
It will now be much harder for a trusted individual to make decisions on behalf of their parent. The only option now is to apply to the Court of Protection to be made someone’s ‘deputy’. Unfortunately, this is an expensive and time-consuming process which can be very difficult to do.
It is always worth getting a LPA in advance wherever possible.
Mental capacity is a legal term under the Mental Capacity Act. Assessing someone for capacity can be done by health or social care professionals. They look at things such as whether the person can process and understand information leading to a considered decision, as well as remember important information. Mental capacity may fluctuate, especially in the middle stages of dementia progression, and it may be different for different decision-making types. In cases of fluctuating mental capacity, the attorney needs to weigh up the capabilities of the individual at the time of each important decision.
Appointing an LPA involves using an (or printed forms). Guidance accompanies the forms. A friend or family member can help complete the forms but, as stated, the individual must have mental capacity. Someone other than the potential attorney will also need to sign the forms to confirm that you have capacity to make the decision to make the LPA and witnesses are needed. The LPA must then be registered with the Office of the Public Guardian. A fee is required (currently £82 for each LPA, with reductions for those on low incomes or in receipt of certain benefits).
Once you know how to get power of attorney for an elderly parent with dementia, you then need to consider how you will make decisions. As an attorney, the premise is that you must always make decisions in a person’s best interests and cannot use your power to take advantage of the person. You can consider the individual’s past and present wishes. The person’s finances must always be kept separate from your own.
If an attorney is found to be breaking the rules, the Office of the Public Guardian may step in, investigate and withdraw the LPA. Healthcare professionals can also override attorneys if they believe a different action is in the best wishes of the individual.
Support with caring for your elderly parent with dementia
If you need help organising legal power of attorney or deputyship then you can speak to the Office of the Public Guardian on 0300 456 0300. Adult social services within your local council also offer advocacy services which may be able to help. Charities, such as Age UK, are also useful for signposting loved ones.