Dementia is a progressive condition that affects memory, understanding, and decision-making. As the condition develops, many family members find themselves navigating complex legal, financial, and emotional issues on behalf of a loved one. Questions often arise about who can make decisions, when it may be appropriate to move into a care setting, and how care is funded once a person with dementia can no longer manage their own affairs.
This guide explains how the law approaches dementia and care decisions, with particular reference to the Mental Capacity Act 2005, and what families should know when planning for the future.
Mental capacity and dementia
Not all people with dementia automatically lose the ability to make decisions. Capacity is decision-specific and time-specific, meaning a person may be able to make some choices but not others.
Under the Mental Capacity Act 2005, a person is assumed to have capacity unless it is proven otherwise. A person lacks capacity if they are unable to:
- Understand relevant information
- Retain that information
- Use or weigh the information as part of the decision-making process
- Communicate their decision
This Act protects individuals while ensuring decisions can still be made when necessary.
Importantly, dementia is not the same as poor mental health. While mental health conditions may fluctuate, dementia is generally progressive, making forward planning especially important.
Who can make decisions for a person with dementia?
When a person with dementia still has capacity, they remain legally entitled to make their own decisions, including where they live and what type of care they receive.
Once capacity is lost, decisions may be made by:
- An attorney appointed under a Lasting Power of Attorney (LPA)
- A deputy appointed by the Court of Protection
- Care professionals or medical staff, for day-to-day decisions
- In some cases, social services or a local authority
There are two key types of decision-making authority:
- Property and financial affairs (managing money, paying bills, selling property)
- Health and welfare (medical treatment, care arrangements, living arrangements)
Without an LPA in place, family members do not automatically have legal authority to act, even if they are closely involved in care.
Can a spouse make decisions for a person with dementia?
A spouse does not automatically have the legal right to make decisions for a person with dementia, even where the couple has been married for many years. Under the Mental Capacity Act 2005, decision-making authority depends on legal appointment, not family relationship.
If the person with dementia still has capacity, they can continue to make their own decisions and may choose to involve their spouse informally. However, once the person lacks capacity, a spouse can only make decisions if they have been legally appointed as:
- An attorney under a Lasting Power of Attorney for health and welfare
- An attorney under a Lasting Power of Attorney for property and financial affairs
- A deputy appointed by the Court of Protection
Without this authority, a spouse may be consulted as part of the best interests process, but they cannot make binding decisions on issues such as care placement, medical treatment, or access to bank accounts.
That said, spouses are usually treated as key family members, and their views must be taken into account by care professionals, social services, and the local authority when decisions are made. Where disagreements arise, particularly about a move into a care home or medical treatment, the matter may need to be resolved through formal legal channels.
When should a person with dementia move into a care home?
Deciding when someone should move into a care setting is one of the most difficult decisions families face. There is no single answer, and each case depends on individual needs and circumstances.
Factors often considered include:
- Safety concerns (wandering, falls, medication management)
- Increasing care needs beyond what can be provided at home
- Carer burnout
- Advice from health and social care professionals
A move into residential care should only occur if it is in the person’s best interests. Where capacity is lacking, the decision must follow the best interests process under the Mental Capacity Act, involving family, carers, and relevant professionals.
Best interests and care planning
When a person cannot make decisions themselves, the law requires that decisions are made in their best interests. This includes considering:
- The person’s past and present wishes
- Their beliefs and values
- The views of family members and carers
- Professional assessments
Effective care planning is essential. This should involve input from care professionals, medical staff, and where appropriate, social services. A poorly managed decision-making process can lead to disputes, safeguarding concerns, or legal challenges.
Do dementia sufferers have to pay care home fees?
In many cases, yes. Dementia does not automatically entitle someone to free care. If a person’s assets exceed the financial threshold, they are usually required to pay for their own care.
However, there are exceptions:
- NHS Continuing Healthcare may fully fund care if needs are primarily medical
- Certain benefits may contribute towards costs
- Property may be disregarded in specific circumstances
Families should seek legal advice early to ensure funding decisions are correct and lawful.
Paying for dementia care and accessing finances
A common concern for families is how care is paid for once a person with dementia can no longer manage their finances.
If a Lasting Power of Attorney for property and financial affairs exists, the attorney can access bank accounts, arrange payment of care fees, and manage assets. If no LPA is in place and the person lacks capacity, an application to the Court of Protection for deputyship is usually required.
Care funding depends on several factors:
- The individual’s savings and assets
- Whether the care is provided at home or in a care home
- Whether the person qualifies for NHS Continuing Healthcare
A local authority financial assessment may determine whether a person must self-fund or is eligible for assistance. Many older people will be required to contribute towards or fully fund their care, particularly in cases of residential care.
Will a person’s house need to be sold to pay for dementia care?
Whether a person’s home must be sold to fund dementia care depends on several factors, including the type of care received and the person’s individual circumstances.
If care is provided at home, the value of the property is not taken into account during financial assessments. However, where a person moves into residential care, the property may be considered as part of the financial assessment carried out by the local authority.
There are important exceptions where a property is disregarded, including where:
- A spouse or civil partner continues to live in the home
- A close relative aged 60 or over lives there
- A dependent child lives at the property
In these situations, the home does not usually need to be sold while the qualifying person remains living there.
If no disregard applies and the person is assessed as needing to fund their own care, the property may eventually need to be sold. However, alternatives may be available, such as:
- Deferred payment agreements with the local authority
- Renting out the property to contribute towards care fees
- Short-term funding arrangements during the initial care period
It is also important to note that deliberately transferring property to avoid care fees can be challenged by the local authority as deprivation of assets.
The role of social services and local authorities
A local authority plays a key role in assessing care needs and funding eligibility. This includes:
- Care needs assessments
- Financial assessments
- Safeguarding vulnerable adults
Local authorities must comply with the Mental Capacity Act and ensure that care arrangements are lawful and proportionate. Families should be aware that while authorities can recommend care options, they cannot override legal decision-makers without proper authority.
Health and welfare decisions
A lasting power of attorney for health and welfare allows an attorney to make decisions about medical treatment, daily care, and living arrangements once capacity is lost. Without this, decisions may fall to healthcare providers, guided by best interests.
Disagreements about treatment or care placement can sometimes require Court of Protection involvement, particularly where there is conflict between professionals and family.
Why early legal advice matters
Planning ahead can prevent unnecessary stress and disputes. Putting lasting powers of attorney in place early allows people with dementia to retain control over future decisions and reduces the burden on loved ones later.
Legal advice can help with:
- Drafting lasting powers of attorney
- Challenging care funding decisions
- Resolving disputes about capacity or care placement
- Court of Protection applications
Speak to AFG Law today
Making decisions about dementia care can be overwhelming, particularly when legal, financial, and emotional issues intersect. Whether you are concerned about mental capacity, care funding, access to finances, or disputes over care arrangements, clear legal guidance can make a significant difference.
AFG Law advises individuals and families on all aspects of dementia-related legal issues, including Lasting Powers of Attorney, Court of Protection applications, care home funding, and disputes involving health and social care bodies. Our team understands the pressures faced by families and works closely with clients, care professionals, and local authorities to achieve practical and compassionate outcomes.
If you are supporting a loved one with dementia or planning ahead for the future, speaking to an experienced solicitor can help protect their rights, dignity, and wellbeing.
Contact AFG Law today to discuss your situation in confidence and find out how we can help. Please get in touch with our team today via email at Privateclients@afglaw.co.uk or speak to one of our experts on the phone at 01204 920109.