Prof Rosie Harding blogs about legal aspects of living with dementia.
One of the findings from the Duties to Care dementia project was that carers would like access to better advice, earlier, about the legal and financial aspects of caring for a person with dementia. The legal and financial aspects of caring for a person with dementia can be difficult for families to navigate. Today’s post is about Lasting Power of Attorney, as part of our dementiaproject.net series of blogs for Dementia Awareness Week 2016.
Lasting Power of Attorney
Everyone (not just people with dementia!) should think carefully about creating a Lasting Power of Attorney (LPA) under the Mental Capacity Act 2005 for property and financial affairs and/or health and welfare issues.
What is a Lasting Power of Attorney (LPA)?
An LPA is a document that allows you (the donor) to appoint someone else (an attorney) to help you make decisions, or to make decisions on your behalf if you become unable to do so. There are two types of LPA available in England and Wales: personal welfare, and property and affairs LPAs.
You can register a ‘Health and Care’ LPA, which allows you to appoint a person to make healthcare decisions on your behalf. Health and welfare decisions include not only things like consenting to medical treatment, but also deciding where you should live, and what the best options are for care and support. An LPA that covers health and care decisions can also be used to make decisions about end of life issues and life-sustaining treatment. A Health and Welfare LPA can only be used if you lose the capacity to make these decisions for yourself.
You can also register a ‘Property and Financial Affairs’ LPA, which enables you to appoint someone to handle your financial affairs. A property and financial affairs attorney would be allowed to make decisions about things like managing bank accounts, paying bills, and selling or buying property and investments.
You can choose to make one type, or both, and you can appoint different people to be your attorneys for different purposes. You can appoint more than one attorney for each type of decision. If you appoint two or more attorneys, you can decide whether they have to act together (jointly) or whether they can act independently of each other (known as ‘joint and severally’).
The Office of the Public Guardian is responsible for registering LPAs in England and Wales. Lots of information is available on their website about LPAs, and how to register them. There are even online forms that you can use.
Why should you create an LPA?
One thing we noticed in the Duties to Care findings was that people often left it quite late before they granted an LPA. The problem with this is that it might be more difficult to get the LPA witnessed and registered by the Office of the Public Guardian if there are serious questions about the donor’s mental capacity.
Under the Mental Capacity Act 2005, a person must be assumed to have capacity. If a person has ‘an impairment of, or a disturbance in the functioning of, the mind or brain’ that interferes with their ability to make decisions (like dementia), then they may not be able to make their own decisions under the law. The test for whether a person can make their own decisions it that they have to be able to understand, retain, use and weigh the information relevant to making a decision and communicate their decision. You can find out more about the Mental Capacity Act online.
There is a good argument for everyone thinking carefully about who they would like to make decisions on their behalf if they lose capacity. Dementia is only one of many issues that can cause impairments in mental capacity – serious mental health problems, acquired brain injuries, and acute medical issues can also result in temporary or lasting problems with decision-making.
Once a person loses the capacity to make decisions about whether to grant an LPA, then they can no longer take advantage of the legal process to appoint attorneys. Instead, those who are caring for them might have to apply to the Court of Protection to be appointed as a ‘Deputy’. This is a more complicated process, and requires the submission of annual reports and the payment of annual supervision fees to the Office of the Public Guardian. It is unusual for the Court of Protection to appoint a health and welfare deputy. They will only do so in exceptional circumstances.
If you want someone you know and trust to be able make health and welfare decisions on your behalf if you lose capacity, including decisions about things like whether to consent to life-sustaining treatment, you should seriously consider registering an LPA for health and welfare matters. You might also want to think about making an Advance Decision to refuse treatment if you feel strongly about aspects of your future care or end-of-life decisions.
It is never too soon to start thinking about these things – but it can get to the point where it is too late. You don’t need to wait until you are unwell to make an LPA. Remember that a health and welfare LPA can only be used when you don’t have capacity to make the decision in question. A finance and affairs LPA can only be used with your consent, or when you lose capacity.
Important Note: The LPA process discussed in this blog relates to the law in England and Wales. Different legal frameworks apply in Scotland and Northern Ireland and elsewhere in the world. The information presented here is not intended as legal advice – if you have questions, you might want to consult a local solicitor, or your local Citizens Advice centre.
Where can I get more information?
Find a Solicitor:
- Law Society (England & Wales): http://solicitors.lawsociety.org.uk/
- Law Society (Scotland): http://www.lawscot.org.uk/find-a-solicitor/
- Law Society (Northern Ireland): http://www.lawsoc-ni.org/
Carers experiences of gaining and using Power of Attorney are discussed in Rosie Harding’s forthcoming book – Duties to Care: Relationality, Dementia and Law (2017, Cambridge University Press).
Follow me on Twitter: @rosiehardinguk