Receiving an Alzheimer’s diagnosis can raise difficult questions about the future. Alongside decisions about care and treatment, families may begin thinking about who will manage finances, deal with property or make important decisions if the condition progresses.
One of the most important points to understand is that a diagnosis of Alzheimer’s does not automatically mean it is too late to make a Lasting Power of Attorney.
A person with dementia can make a Lasting Power of Attorney (LPA) provided they have the necessary mental capacity to make that decision at the time. This makes it important to consider planning early rather than waiting until dementia progresses and important decisions become more difficult.
AFG Law’s Private Client team can advise people with dementia and their families about Lasting Powers of Attorney, existing Enduring Powers of Attorney and what options may be available if someone has already lost capacity.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows someone, known as the donor, to appoint one or more trusted people as their attorneys. Those attorneys can then make certain decisions on the donor’s behalf, depending on the type of LPA that has been created.
An LPA is a legal way of planning ahead for circumstances in which illness, an accident or another condition leaves somebody unable to make particular decisions themselves. For someone living with dementia, putting LPAs in place can provide reassurance about who will be able to help manage their affairs as their needs change.
There are two different types of LPA, which are Property and Financial Affairs and Health and Welfare. You can make either one or both.
Can a person with Alzheimer’s sign a Power of Attorney?
Yes, a person with Alzheimer’s can potentially sign a Power of Attorney. The important question is not whether somebody has been diagnosed with Alzheimer’s. It is whether they have sufficient mental capacity to make the LPA.
Mental capacity relates to a person’s ability to make a particular decision at the time it needs to be made. A diagnosis of dementia does not, by itself, establish that somebody lacks capacity to make every decision.
Someone in the earlier stages of Alzheimer’s may still be perfectly capable of understanding what an LPA is, why they are making one, who they want to appoint and what powers those attorneys will have. Capacity can also vary. Someone may be able to make some decisions but not others.
This is why it is important not to make assumptions about what a person can or cannot do simply because they have received a diagnosis. However, an LPA cannot be created after the donor has lost the necessary capacity to make it. If there are concerns, obtaining legal advice early can help establish the appropriate next steps.
Why is it important to plan early?
Alzheimer’s is a progressive condition. As dementia progresses, a person’s ability to understand and make certain decisions can change. Making an LPA while the person has capacity allows them to decide for themselves who they trust to act. This person could be a spouse, partner, adult child, another family member, friend or professional.
Waiting until somebody can no longer make an LPA can leave their family in a much more difficult position. Being somebody’s spouse, child or next of kin does not automatically give you authority to manage their bank accounts or make all decisions on their behalf.
Where capacity has already been lost and no appropriate LPA exists, an application to the Court of Protection may be required for somebody to be appointed as a deputy. Planning ahead can therefore give the individual greater control over who will make decisions if they later need help.
What does a Property and Financial Affairs LPA cover?
A Property and Financial Affairs LPA concerns financial matters. Depending on the circumstances and the terms of the LPA, an attorney could deal with matters such as managing bank accounts, paying bills, collecting benefits or pensions, dealing with investments and buying or selling property.
A Property and Financial Affairs LPA can be particularly valuable for someone living with Alzheimer’s because everyday financial tasks may become more difficult over time.
Unlike a Health and Welfare LPA, a Property and Financial Affairs LPA can potentially be used while the donor still has capacity once it has been registered, provided the donor has chosen to allow this and gives permission.
This can enable an attorney to provide practical assistance before the donor reaches the point where they can no longer make financial decisions themselves.
What does a Health and Welfare LPA cover?
A Health and Welfare LPA concerns personal welfare decisions. These can include decisions about where somebody lives, their daily routine, medical care and other aspects of their health and wellbeing.
Unlike a financial LPA, attorneys under a Health and Welfare LPA can only make a particular decision when the donor does not have the capacity to make that decision themselves. This can become particularly significant as Alzheimer’s progresses and more substantial care decisions need to be made.
For example, attorneys may need to communicate with healthcare professionals, social care teams and care providers about the person’s needs.
When making the LPA, the donor must also decide whether their attorneys should have authority to give or refuse consent to life-sustaining treatment on their behalf. These are important choices, which is another reason to plan for the future while the individual can express their own wishes.
What is an advance decision to refuse treatment?
An advance decision to refuse treatment is different from a Lasting Power of Attorney. Sometimes referred to as an advance decision or living will, it allows a person to record particular medical treatments that they do not want to receive in specified circumstances in the future.
There are specific requirements where an advance decision concerns life-sustaining treatment.
The relationship between an advance decision and a Health and Welfare LPA can also be important. The order in which documents were created and the decisions covered can affect which takes priority. Anyone considering both should take advice to make sure their arrangements work together and accurately reflect their wishes concerning future care and treatment.
What is the role of the Office of the Public Guardian?
An LPA must be registered before it can be used. Registration is dealt with by the Office of the Public Guardian (OPG).
The OPG also has a wider role in protecting people who lack capacity and supervising the legal framework surrounding attorneys and deputies.
Making an LPA involves more than simply asking somebody to help with your affairs. There are formal requirements, including the involvement of a certificate provider who confirms matters including that the donor understands the LPA and is not being pressured into making it.
This safeguard can be particularly important where there are concerns about an individual’s capacity or vulnerability.
What if there is already an Enduring Power of Attorney?
Some families may discover that their relative made an Enduring Power of Attorney (EPA) many years ago. EPAs were replaced by LPAs in 2007, so it is no longer possible to make a new EPA. However, a valid EPA made and signed before 1 October 2007 can still be used.
An EPA only covers property and financial matters. It does not provide the same Health and Welfare powers available under an LPA. An existing EPA must also be registered with the Office of the Public Guardian when the donor is starting to lose or has lost mental capacity.
If an older relative has an EPA, it is therefore worth obtaining advice about what it covers and whether any additional planning is appropriate while they still have capacity.
What happens if someone with Alzheimer’s has already lost capacity?
If the person no longer has the mental capacity required to make an LPA, another person cannot simply sign one for them. A relative also cannot create an LPA retrospectively.
Instead, it may be necessary to apply to the Court of Protection for authority to make certain decisions. For financial matters, this can include applying for somebody to become a property and financial affairs deputy.
The process is different from making an LPA because the individual is no longer choosing who should act for them. The Court of Protection decides whether to make the appointment.
This is one of the reasons families should consider LPAs sooner rather than later following an Alzheimer’s diagnosis.
Planning ahead following an Alzheimer’s diagnosis
There can be a great deal to think about following a diagnosis, and legal planning does not have to be dealt with all at once. However, while the individual still has the capacity to make their own decisions, there is an opportunity for them to have a direct say in who they trust and how they would like their affairs handled in the future.
AFG Law’s Private Client team can advise on Property and Financial Affairs LPAs, Health and Welfare LPAs and existing Enduring Powers of Attorney. Where somebody has already lost capacity, we can also advise family members about Court of Protection and deputyship applications.
If you or a family member is living with Alzheimer’s or another form of dementia and would like to plan for the future, contact AFG Law’s Private Client team for advice on Lasting Powers of Attorney and the options available.