It is estimated that by 2025, over 1,000,000 people in the UK will have dementia. This number is only expected to rise as people live longer, so it is essential that clients plan for the future as losing mental capacity can be very stressful not only for the person themselves, but also for their loved ones.
A Lasting Power of Attorney (LPA) is the best way to ensure that the people or person someone would like to make decisions for them have the authority to do so.
What is a Lasting Power of Attorney and why would somebody need one?
An LPA is a legal document that gives an individual (“a donor”) an opportunity to choose a person or people they trust (“attorneys”) to make decisions on the donor’s behalf if he or she loses mental capacity. There are two types of LPA – one for Property and Financial Affairs and one for Health and Welfare. Anyone over 18 who has mental capacity can make an LPA.
What does ‘mental capacity' mean in this context?
Mental capacity means somebody is able to understand and make decisions for themselves. In this context, capacity means the donor must understand the process of making an LPA, why they are making it and the likely outcome.
Making Lasting Powers of Attorney with dementia:
In order to be able to make an LPA, a donor must have mental capacity which can present issues to those with dementia.
It is a common misconception that if you have been diagnosed with dementia that you are unable to make LPAs. However, this is not the case and many clients are still able to make LPAs.
Often those with dementia experience fluctuating capacity. Fluctuating capacity is where someone’s ability to make decisions changes over a period of time.
If someone has fluctuating capacity, we will do our best to work around them. For instance, if you know that your loved one makes decisions better in the morning or after they have had their lunch, then we would try to schedule a meeting that works around when they are at their best.
Time is of the essence:
It is crucial to not “leave it too late” as once someone has lost mental capacity the option to make LPAs will no longer be available. If we are unable to take instructions from a client where capacity is a concern, we can refer them to a capacity assessor for a more detailed assessment, but unfortunately this can also confirm a lack of mental capacity.
If a client has lost mental capacity, the only option available at this stage would then be a Deputyship application. However, Deputyship applications are time consuming, expensive and can be complex depending on your family circumstances which can cause extra stress at any already stressful time.
With this in mind, it is best to seek advice as soon as possible and our Lifetime and Estate Planning team at Irwin Mitchell are here to help clients with any LPA queries. For more information contact us here.