There may come a time when a person with dementia is unable to make decisions about their care and finances. A lasting power of attorney appoints someone else to make decisions on their behalf, in their best interests.
A lasting power of attorney (LPA) is a legal document appointing one or more trusted people to be a person’s ‘attorney’ – someone who is responsible for making decisions on their behalf.
There are two types of LPA, and a person can draw up either or both:
- Health and welfare – covers decisions regarding care needs, such as medical care, life-sustaining treatment, and moving into a care home
- Property and financial affairs – covers decisions regarding bank/building society accounts, bills, benefits, pensions, and buying and selling property
An LPA is only valid in England and Wales.
In Scotland, the equivalent is called power of attorney.
In Northern Ireland, there are two slightly different processes: power of attorney and enduring power of attorney.
Most people with dementia will reach a point where they can no longer make decisions about their finances or care. This is called ‘loss of mental capacity’.
Making an LPA before the person with dementia loses mental capacity means they can state their preferences about their future care and affairs while they are still able to.
The attorney is then legally bound to respect the person’s wishes as far as possible and make decisions in their best interests if they lose mental capacity.
If a person loses capacity and does not have an LPA, it will be more difficult for someone else to make decisions on their behalf.
They may have to apply to the Court of Protection to be appointed as the person’s ‘deputy’. This can be a long, complex and expensive process, so setting up an LPA in advance is strongly recommended.
Even if someone is married or in a civil partnership, it is important to make an LPA, as their partner is not automatically entitled to make decisions on their behalf.
Mental capacity is a legal term that concerns whether a person is capable of making important decisions.
A person is judged to have lost mental capacity if they cannot:
- understand the information needed to make a decision
- retain that information in their mind
- use or weigh up that information as part of the decision-making process
A person can only draw up an LPA while they have mental capacity.
Usually, a health or social care professional will assess whether a person has capacity using the principles of the Mental Capacity Act.
A health and welfare attorney can only make decisions using their LPA if the person has lost the mental capacity to make their own decisions.
However, a property and financial affairs attorney can make decisions on their behalf as soon as the LPA is registered, with the person’s agreement, even if they still have mental capacity.
Mental capacity may come and go – for example, a person with dementia may temporarily lose capacity if they are experiencing delirium (sudden, extreme confusion, often due to an infection) or taking sedative medication.
For this reason, it is essential to weigh up whether the person has capacity each time an important decision has to be made.
- Choose an attorney
The attorney must be:
- 18 or over
- capable of managing their own affairs well
- trusted by the person making the LPA
For example, they could be the person’s partner, another family member, a friend or a professional such as a solicitor.
The person can choose the same attorneys for both types of LPA, or different ones for each.
They can also appoint more than one attorney for each LPA – for example, if they have more than one adult child and would like them all to be involved in decisions.
If they do, they must decide if the attorneys can make decisions separately (‘severally’) or together (‘jointly’).
The person may specify that some decisions must be made jointly (eg whether to sell the person’s house) but others can be made severally (eg day-to-day matters like making doctor’s appointments).
2. Fill in the LPA form
- make an LPA online (the form will still need to be printed and posted)
- download a form at gov.uk
- request a paper form from the Office of the Public Guardian (phone 0300 456 0300 or email firstname.lastname@example.org)
The forms must be signed by:
- the person making the LPA
- the person nominated as attorney
- a witness to the applicant’s and attorney’s signatures
- a ‘certificate provider’, who confirms the applicant understands what they are doing and is not being forced to complete the LPA. This must be someone the person has known for two years or more, or a professional such as a doctor, social worker or solicitor. The witness can also be the certificate provider
A relative/friend or solicitor can help the applicant or fill in the forms for them, but they must be able to sign it themselves.
The person applying for the LPA can nominate up to five people who will be notified about the application and given the chance to raise any concerns. This is optional, but helps to ensure the person is not being pressured to make the LPA.
To do this, you must fill in a Form to Notify (LP3), available from the places above.
3. Register the LPA
Send the signed LPA form to the Office of the Public Guardian – the address is on the form.
It costs £82 to register each LPA, so if you make both a health and welfare LPA and a property and financial affairs LPA, the total fee is £164.
Some people qualify for a fee reduction or exemption, eg if they claim certain benefits. You can download an exemption/remission form at gov.uk.
Once you have sent in your LPA form, it can take up to 20 weeks to register it (or longer if there are mistakes – so ensure you check it carefully).
The Office of the Public Guardian will then send a Registration Notice to both the applicant and the attorney to let them know that the LPA is now active.
If an attorney needs to make a decision on the person’s behalf, they:
- must act in the person’s best interests
- must consider the person’s past and present wishes
- cannot take advantage of the person to benefit themselves
- must keep the person’s money separate from their own
If the attorney fails to follow these rules, the Office of the Public Guardian may investigate and the LPA may be cancelled. The attorney could be prosecuted if they are found to have taken advantage of the person with dementia.
It is possible for health professionals to override the views of the attorney(s) in the case of the health and welfare LPA if they believe the person’s best interests are not being met.
To speak to a dementia specialist Admiral Nurse about making an LPA or any other aspect of dementia, please call our free Dementia Helpline at 0800 888 6678 (Monday-Friday 9am-9pm, Saturday and Sunday 9am-9pm, every day except 25th December), email email@example.com or you can pre-book a phone or video appointment with an Admiral Nurse.