When is it too late to set up a Power of Attorney?

While you shouldn’t put off setting up a Lasting Power of Attorney if you’ve been diagnosed with a form of dementia, a diagnosis doesn’t mean it’s too late. Christina Macdonald explains why it’s important to do it early on and what the process involves

If you have recently been diagnosed with a form of dementia, you may still be able to set up a Lasting Power of Attorney but don’t leave it too long. You will need to do it while you still have capacity and a solicitor will need to be confident that you understand what you are signing. If they are unsure, they may contact your GP.

I didn’t think I’d be able to obtain Lasting Power of Attorney for my mother’s affairs as she had already been diagnosed with dementia. It’s a common misconception and I was wrong. The solicitor I spoke to advised me that so long as he was satisfied that mum could understand what she was signing and why she was signing it, then he would be happy to proceed.

When we all sat down to go through the paperwork, it was evident that mum knew what she was signing. He asked her what she was there for and she replied: ‘To arrange for my daughter to handle my affairs’. She clearly understood what was happening and he was happy to proceed.

Anyone in any doubt about whether their loved one has capacity should speak to a solicitor immediately and seek further advice. Don’t leave it too late, or it may not be possible to obtain Lasting Power of Attorney.

What is Power of Attorney?

A Lasting Power of Attorney is a legal instrument that allows you to appoint someone to make decisions on your behalf if you lack the capacity to make them yourself at some point in the future. There are two types of Lasting Power of Attorney (LPA) as follows:

• Property & Finance – This means that the person or persons you appoint to be your attorney(s) can make decisions on matters such as buying and selling your property, investing money and paying bills. With Property & Finance LPA, you can delegate decisions to be made on your behalf while you still have capacity and you may choose to pass on the responsibility of decisions to your attorney, especially if you are feeling tired or unwell and don’t feel able to carry the burden of making these decisions.

• Health & Welfare – This means that the person or persons you appoint to be your attorney(s) can make decisions about your health and wellbeing including decisions about your medical care and where you live.

Unlike Property & Finance LPA where you can ask your attorney to make financial decisions when you still have capacity, with Health & Welfare LPA, if you have capacity, you must make your own decisions about your health and the attorney can only make decisions if you have lost capacity.

Many people focus on Property & Finance LPA, but it’s important to do both while you still have capacity. You might want to choose different attorneys for each as they are very different – someone you appoint for Property & Finance may be very skilled at finance and managing paperwork but less suited to making decisions about your health. It’s hugely important to appoint someone you know you can trust who has your best interests at heart.

How many attorneys do you need?

You can appoint just one person to be an attorney, but it’s usually best to have more than one in case that person is unable to act for you when the time comes. If you appoint only one attorney, you can also appoint someone else as a replacement attorney who would take over if the attorney were unable to act on your behalf.
There is no limit on the number of attorneys you can have. In essence, there are three different ways of setting up a Lasting Power of Attorney. They are:

Jointly – The attorneys have to make decisions together and must all sign paperwork together.

Jointly & Severally – Where one or more person(s) can act on behalf of the other attorneys. Many people choose this option. This means that one attorney can sign the paperwork and make decisions without the other attorneys present. This could work well if one of the attorneys lives abroad or frequently works away from home.

Jointly and Jointly & Severally – This means Jointly in respect of some matters and Jointly & Severally in respect of other matters. But you have to be very specific about what matters are going to be Joint and what matters will be Joint & Several.

The process can be handled relatively swiftly with the help of a solicitor; however, the document needs to be sent to the Office of the Public Guardian where it needs to be registered. This can take up to eight weeks.

If you are considered to be lacking mental capacity to make a Power of Attorney, a solicitor cannot make one as the document is intended to protect you. The next option is to make an application to the Court of Protection for a deputy to be appointed. This means that the court has jurisdiction to appoint someone to make decisions for you. This can take up to six months or longer and clearly illustrates that it’s important to set up Power of Attorney while you still have mental capacity.

Advance Decision

An Advance Decision is a legally binding document, which outlines what treatment you would like to receive in future, when you are unable to communicate your wishes. Examples could be asking to have your organs donated after you die or whether you would want to be resuscitated if you were to stop breathing in the later stages of your illness. Another example could be deciding you would not want antibiotics prescribed if you develop pneumonia during the later stages of your dementia. The decision must be relevant to the medical circumstances that have arisen and can only be used if you no longer have capacity.

You can write your own Advance Decision but you need to be clear about your wishes and describe specific scenarios. It’s worth discussing an advance decision with your GP first and if you have further questions, you could talk to a solicitor. If you write your own Advance Decision, it must include name, address, and your date of birth and the name, address and phone number of your GP, your signature and the date.

You should arrange for someone over the age of 18 to sign and witness the document. If you choose not to use a solicitor, it’s a good idea send your solicitor and GP a copy. Incidentally, the laws are different in Northern Ireland. For more information, or for a template of an Advance Decision, visit Alzheimer’s Society’s website at https://www.alzheimers.org.uk/site/scripts/documents_info.php?documentID=354

Christina Macdonald is a writer and editor and author of the book, Dementia Care: A Guide (£7.99, Sheldon Press), aimed at family carers. It is on sale now on Amazon and in all good bookstores.