What happens if someone has dementia and no Power of Attorney?

A Lasting Power of Attorney (LPA) allows an individual to appoint a trusted relative or friend to manage their affairs, should they lose the mental ability to do this themselves. An increasing number of people have LPAs in place in case they are ever needed, but some families may find a loved one facing difficulties with no LPA to rely on. We look at what happens if someone has dementia and no Power of Attorney.

At Lockings Solicitors, we have particular expertise in helping the families of those facing the challenges of loss of mental capacity. Our Associate Director Joanne Liversidge is a Dementia Friend and understands the issues faced by those with the condition and their relatives. She is also a member of Solicitors for the Elderly, the national law group for lawyers who specialise in representing older and vulnerable clients,

Joanne has an exceptional team supporting her, with experience in helping individuals and their families who are affected by legal complications resulting from dementia and other types of loss of mental ability. We provide the highest levels of client care and will provide the advice and guidance you need during this difficult time.

How can a Lasting Power of Attorney help dementia patients?

A Lasting Power of Attorney is a document that gives someone the legal authority to take over the affairs of the person who made the LPA. There are two types of LPA that can be made:

• Property and financial affairs Lasting Power of Attorney; and
• Health and welfare Lasting Power of Attorney

You can make one or both types of LPA and appoint the same or different attorneys for each. You can also choose to have more than one attorney if you wish.

If someone develops dementia, having an LPA in place means that their attorney will be able to take over their affairs, if and when this becomes necessary.

What decisions can an attorney make for someone under an LPA?

An LPA can be drafted to give your attorney the range of authority that you want them to have. It can be useful to let an attorney have fairly wide powers, but it is open to you to impose restrictions if you wish. For example, you could require two attorneys to decide jointly whether your home needs to be sold. For other less onerous decisions, they could act independently, which would make dealing with your affairs easier.

If you would like us to advise you, we can go through the powers that you can give your attorney and discuss how you would like your LPA drafted, so that it is tailored to your needs.

Property and financial affairs LPA

A property and financial affairs LPA will often give attorneys the authority to do the following:

• Pay bills
• Claim and receive benefits
• Manage your bank account
• Make investments on your behalf
• Maintain and insure your home
• Sell your home, if necessary

Health and welfare LPA

A health and welfare LPA commonly gives an attorney authority to decide:

• Where you will live
• What daily assistance you will have
• How you will spend your time
• Who you will see
• What medical treatment you will receive
• What medical treatment will be declined on your behalf

What happens if someone has dementia and no Power of Attorney?

If someone develops dementia but does not have a Lasting Power of Attorney, their relatives will not be able to deal with their affairs. This can cause difficulties if bills cannot be paid or care arranged.

In the early stages of dementia, it may still be possible to make a Lasting Power of Attorney if the patient can understand the implications.

They will need to:

• Understand what the LPA is and the effect of signing it
• Be capable of retaining information about the LPA so that they make a considered decision about whether or not to sign it
• Be able to decide whether they wish to sign
• Be able to communicate their decision

Dealing with someone’s affairs when they have dementia and no Lasting Power of Attorney

Where someone has dementia and they do not have the understanding to sign a Lasting Power of Attorney, their family can apply to the Court of Protection for a deputyship order. This is an order of the court appointing someone to deal with the patient’s affairs.

It is a lengthier process than putting an LPA in place and also more expensive. It may leave a family in short-term difficulties while the application is processed, as no-one will have the authority to deal with the matters for the patient.

If urgent matters need to be dealt with, it is sometimes possible to ask the court for an emergency order or an urgent interim order. We can advise you of the criteria for this and, if necessary, put together the application and the documents needed in support.

Applying for a deputyship order

There are two types of deputyship order:

• Property and finance deputyship order; and
• Health and welfare

You will need to fill in an application form and send it to the Court of Protection. It will need to be accompanied by several other forms. If you are applying for authority to deal with the patient’s property and finance, you must provide full details of their assets, debts, expenses and income.

If you want to be able to manage the patient’s health and welfare, you will need to give information about social workers and other professionals currently involved. The court will also want to know what care or treatment you wish to be able to authorise.

An assessment of capacity form must also be completed. The person applying to be the deputy will need to complete part of this and a practitioner with the professional skills to be able to assess capacity will need to complete the second part.

The proposed deputy needs to sign a document declaring that they understand their responsibilities and giving certain details about their own situation. The court will need to be satisfied that they are a suitable choice as deputy and will look at matters such as the proposed deputy’s own financial situation, if they are applying to be a property and finance deputy, and their health.

The court may require you to put a security bond in place if you will be dealing with the person’s property and finances. This is insurance that will provide coverage for the patient should their assets not be properly protected. A premium will be payable each year for this.

You will also need to pay an annual supervision fee to the Court of Protection and provide an annual report detailing the actions you have made on behalf of the patient.

Contact our East Yorkshire and York area dementia solicitors

If you are helping a family member with dementia and you would like to discuss how you can represent them, please call us.

We draft Lasting Powers of Attorney and put together applications to the Court of Protection for deputyship orders.