Creating a lasting power of attorney

In the UK, approximately 1 in 11 people over the age of 65 have dementia, with case numbers expected to rise even further as the life expectancy of our population increases. Here, we discuss creating a lasting power of attorney.

This article is one in our Dementia Action Week series; providing an overview of how a dementia diagnosis can affect a person’s legal affairs and how we can help you plan for the future and protect your loved ones.

You can view the other two articles in this series here, with our introduction to dementia and mental capacity and applying to the Court of Protection for deputyship orders.

Lasting powers of attorney

When someone is diagnosed with dementia it can be an incredibly challenging time – not only for them but also their family and friends.

When a person with dementia loses their capacity to make decisions for themselves, a lasting power of attorney (LPA) enables an individual (the donor) to appoint named individuals (the attorneys) to make decisions on their behalf when they are unable to do so. An LPA is an essential tool for future planning and enables someone with dementia to have their wishes respected if their condition deteriorates and they can no longer make their decisions.

Under the Mental Capacity Act 2005, a donor must be over the age of 18 to create an LPA and they must have mental capacity at the time of its creation. When a lawyer meets with a client, they will carry out an initial evaluation of their capacity. If there are signs that the person may lack mental capacity, you may be asked for permission to instruct a GP or a suitably qualified medical practitioner to carry out an assessment. Where a person is having ongoing treatment for dementia, lawyers will usually ask for permission to speak to dementia nurses, for instance, to ascertain whether a full assessment is required.

There are two different types of LPA:

• Health & welfare – These allow attorneys to make decisions regarding a person’s medical treatment, where they live and their daily routines.
• Property & financial affairs – These allow attorneys to manage the donor’s bank accounts for them, pay their bills, deal with any taxes and buy or sell property on their behalf.

All decisions made by attorneys must be made in the best interest of the person with dementia. You can appoint more than one attorney and there are three ways in which this can be done:

• Joint attorneys – All decisions must be signed for and agreed by all attorneys. One attorney cannot make a decision without the other. If an attorney loses mental capacity themselves, passes away or is declared bankrupt, they can no longer act.
• Joint & several attorneys – Decisions can be made by all attorneys, or they can make a decision alone. This is particularly advantageous in emergency situations where an attorney may be unreachable. If an attorney loses mental capacity, passes away or is made bankrupt, the other attorneys can continue to act. Whilst an attorney can make a decision on their own, they should discuss any such decision with the other attorneys.
• Joint for some decisions, joint & several for other decisions – Some decisions must be made unanimously by all attorneys, but other decisions can be made by just one. Joint and several decisions can be made regardless of whether an attorney dies, loses capacity themselves or is made bankrupt. However, any joint decisions will no longer be able to be made in these circumstances. A replacement attorney may need to be appointed to enable joint decisions to be made, but this depends on how the LPA is structured – legal advice should always be sought in these circumstances. If there is nothing in the LPA then an application will need to be made to the court in respect of those joint decisions.

At Willans, we tailor our LPAs to suit your needs and wishes, taking into consideration factors many others forget when creating an LPA for themselves.

We obtain a clear picture of their wishes, their health needs now and any possible needs in the future, keeping a record of decisions for the attorneys. Our lawyers ensure that the attorneys are properly prepared for their role, understand their duties and have a point of contact should they have any questions.

When LPAs are completed, they are sent to the Office of the Public Guardian (OPG) for registration. Because things can go wrong with the execution of LPAs – and that the OPG is working through a long backlog of applications – our lawyers make sure there are no issues when they’re sent and that there aren’t any delays.

During what can be a distressing time for those involved, you are bound to have a lot of questions. Our experienced and friendly team will be happy to help and support you through the process, so please don’t hesitate to contact us.

Dementia Action Week takes place from 13 – 19 May and is focused on improving dementia diagnosis rates. Our Legal 500-rated wills, trusts & probate team has the expertise to help you plan for the future and guide you through any difficult challenges that may arise, including those relating to lasting powers of attorney.