Latest insights from our experts

Posted 6 February 2019
by Gráinne Staunton

Dementia: how can a power of attorney help?

Elderly couple walking

For years, the worry of cancer was one of the UK’s biggest health concerns. Now, another devastating disease has taken its place at the top of the list of diagnoses we all dread – dementia. Over 800,000 people in the UK now live with dementia, and the indicators are that the number of patients with this life-shortening condition will grow.

A diagnosis of dementia doesn’t just affect the patient, but the entire family too. In its latter stages, the dementia patient will rely on family members and carers to look after their affairs, from everyday things like eating, getting up, and bathing, through to those long-term considerations such as wills, financial affairs and bill payment. It is at this point that a family member can be given power of attorney over a dementia sufferer’s affairs, so that everything is taken care of on behalf of the patient.

What is power of attorney?

Granting someone power of attorney over your affairs means that you hand over the power to make decisions on your behalf to someone else. This is often a family member or solicitor. There are two types of power of attorney – one to handle property and financial affairs and another for health and welfare issues. The same person can act on your behalf for both types, or you can have two different people to take care of each area individually.

The lasting power of attorney for your property and financial affairs means that a designated individual of your choosing can make decisions on your behalf. They could deal with paying rent or mortgages, council tax and other utility bills, managing your bank account and savings accounts, and collecting your benefits or pensions. They’ll also be responsible for ensuring that your money is used in such a way that it benefits you.

An attorney responsible for matters related to your health and welfare can only make decisions for you if you have lost the mental capacity to make your own decisions on things such as care, medical treatment, and moving into a care home.

Who can be an attorney?

It’s crucial that the person creating the powers of attorney not only knows who they’re handing power of attorney over to, but also completely trusts them. In most instances, the person taking on the mantle of acting as attorney is a close family member but professionals, such as solicitors and accountants, can also be given that responsibility. However, you need to bear in mind that if you do ask a professional to do it for you, they will charge for their time. As dementia progresses, they may be called upon more frequently to act in their client’s interest, which can send the costs up considerably.

Appointing a replacement attorney

You can also appoint someone to act as a replacement attorney if your first choice is unable or unwilling to continue in the role.

How can I be sure they’ll carry out my wishes?

This is always a difficult question, as it can throw up some very subjective replies. This is why it can often be best to appoint two attorneys to act in respect of your financial and legal affairs and two to act for you in respect of your health and welfare.

You could choose the same two people to act in each case and doing so can help ensure an element of oversight.  If doing so would be practical, the safest course can often be to appoint your two attorneys to act ‘jointly’.  This will mean that there are always two signatures required for documents and for important financial pay-outs such as mortgage repayments, care home payments, and other financial decisions.

In many cases, however, allowing your attorneys to act for you both jointly and independently (meaning that one attorney could make a decision for you on their own and independently of their co-attorney) can be a practical solution which allows both an element of oversight as well as practical flexibility.

The guidelines of the Mental Capacity Act

Once you have appointed your attorneys, they are bound by the Mental Capacity Act which means they must always act in your best interest, consider your previous and current wishes, and ensure that all your money is kept separately from their own. An attorney cannot put your money in their account to ‘look after it’ or make investments with your money which would not be in your best interests. No attorney can take advantage of a dementia patient to benefit themselves. Any evidence of this could lead to an investigation and criminal prosecution.

Do I need a solicitor?

A diagnosis of dementia is devastating. However, once the initial shock has passed, it is time to take action to ensure that your affairs are in order and that you are looked after properly. What you don’t want is the worry of financial issues and questions about your care causing you any more distress.

You don’t have to seek legal advice but it is recommended that you ask a solicitor to make sure that any lasting power of attorney agreement is drawn up properly. It’s an important and very powerful legal document, so it pays to talk to an expert in the law surrounding Lasting Powers of Attorney to make sure all the forms have been filled in correctly to prevent any issues later.

If you wish to speak with our experienced team of wills and probate solicitors please don’t hesitate to call us on 01392 207020

Want to know more?

Request a call back or ask us a question using our quick-contact form.
Alternatively you can call us on 01392 207020.

About the author

Gráinne Staunton

Partner and Solicitor

Partner and solicitor who specialises in the administration of complex estates, Wills and estate planning for wealth preservation and asset protection