A legal guide to LPAs and dementia
Being diagnosed with the early stages of Alzheimer’s Disease or other dementia symptoms can understandably be a frightening and upsetting time. In support of Dementia Action Week, our Elderly & Incapacity experts have put together a guide to help you feel calmer by having arranged all your affairs.
1. An LPA is designed to help you control your decisions
Making a Lasting Power of Attorney (LPA), either for property and finance and/or health and welfare, allows you to choose and legally appoint someone (your Attorney/s) to make decisions for you if you are physically or mentally unable to in the future. Using the specialist advice of a solicitor means that you can make specific and detailed requirements making sure your wishes are exactly fulfilled.
2. Appoint a trusted Attorney to manage your estate
Some people will know exactly who they would want to make decisions on their behalf. For others this is not quite so simple. Our team can talk you through this choice, and advise your chosen Attorney on exactly what will be required of them. Many of our team also act as professional Attorneys to clients that would prefer this option.
3. Help with managing your finances
Your Attorneys can help make sure your bills are paid, investments are managed and can even arrange birthday and celebratory gifts for family and loved ones. They can also make decisions based on your guidance about paying for care if this becomes necessary.
4. Let others make decisions with you about your health and treatment
When it comes to the end, everyone’s wish is different. Some people feel very strongly that they would like to continue treatment whereas others would rather there was no medical intervention. These are hard decisions to make and our specialists can talk you through your options to make sure your wishes are communicated clearly to your Attorney and medical staff.
5. It can help you stay in your own home
For some, the ability to stay in their own home rather than a care home is of the utmost importance to them. When the time comes your Attorneys can work with local services to allow you to receive any care needed at home in an environment that you are comfortable and secure in.
6. When the time comes, the people who you trust are there to keep you safe
Making your LPA doesn’t necessarily mean you’ll immediately give control to your Attorney. It may be years before it’s needed but you can feel secure that when the document is implemented you’ve stated exactly how you want your finances, and health to be managed.
To help you understand the legal side of dementia and making an LPA, our expert legal team has produced a free guide. Below you can find an extensive guide on what you need to know, or just click the links to jump to a specific area of interest.
Legal advice that lets you and your loved ones keep control
An Alzheimer’s diagnosis or the discovery of other Dementia symptoms in yourself or a family member can be a very difficult and upsetting time. No one likes to think that they or anyone in their family will ever lose their mental capacity or their ability to make decisions, whether through illness, injury or simply advancing age. So many people shy away from even considering the possibility of this happening.
However, planning for all eventualities can actually make people feel better and more in control of their lives. Thinking about who you would want to make decisions about your finances, care and welfare, if you couldn’t, can be challenging but is a very worthwhile exercise just like also considering who you would eventually like to leave your estate to.
Experts in dementia advice
Our specialist team is committed to providing clear and tailored advice to help you through the challenges that dementia can bring.
We pride ourselves on being specialists in elderly client matters. Many of our solicitors are full members of Solicitors for the Elderly, STEP Affiliates, Dementia Friends and have many years of experience in working with elderly clients and their families.
Dementia Friends Accreditation
The team is rolling out Dementia Friend training to all of our staff who may have clients with dementia. We understand that their situation is complicated and upsetting enough without being misunderstood when they are seeking help and advice.
Making a Lasting Power of Attorney – helping you stay in control of your decisions.
Making a Lasting Power of Attorney (LPA), either for property and finance and/or health and welfare, allows you to choose and legally appoint someone (your Attorney/s) to make decisions for you if you are physically or mentally unable to in the future.
No-one really wants to relinquish control of their personal decisions, and although the forms to appoint an Attorney can be straightforward, no-one’s life and their circumstances ever are.
The Lasting Power of Attorney forms can be accessed and completed online by anyone, but we feel strongly that it is the advice around the forms and their appropriate drafting that can only be given by specialists in this area. This advice will allow you to stay in control and make sure your requirements are accurately recorded.
Specialist advice we offer can include:
- Incorporating additional specialist wording to make sure the form is correct and specific for you.
- Discussing with you who should be your Attorney, and whether they are suited for the role and able to do it.
- Information for your Attorney on what they can and cannot do (this is an area often misunderstood).
- Information about welfare decisions; how these work, your wishes and how your wishes can be followed when you are unable to express them.
- When your Attorney will act for you.
- Making sure you have control of the process, and fully understand it.
- How the LPA can be used by your Attorney to make sure you feel adequately protected.
Retaining autonomy over your financial and welfare decisions is what we all want. Making a Lasting Power of Attorney means that you will continue to make these decisions until capacity (either physical or mental) becomes an issue. Then you can be reassured you have controlled who will act for you and how.
You can find out more about LPAs by downloading our free guide on understanding lasting powers of attorney.
What is the difference between an LPA and an EPA? (Enduring Powers of Attorney)
You may already have an EPA which will make decisions about your finances but you may also want to consider an LPA for Health and Welfare as your EPA will not be able to help you in this area.
We have written a fact sheet to help you understand the difference between an LPA and an EPA which you can read and download for free.
You can download and keep our guide on EPAs and LPAs here.
Dementia and the importance of making a Will
In much the same way as you want to make sure that your affairs are managed by you or your appointed Attorneys during your life (using an LPA), when you pass away it is only natural you would want the same level of control applied. The only way to do this is by making a Will.
If you or a loved one have been diagnosed with dementia symptoms you may want to review the terms of your Will, and having such a diagnosis does not necessarily stop you doing this. You will need to use skilled legal advisors who understand the specific tests of capacity to make or alter your Will. Our specialist elderly client team are skilled in making these assessments making sure your estate will be dealt with in the way you would want.
You may be concerned about how to protect your family home and assets should care home fees be required at a later date. This is an area where great care needs to be taken about what action is taken and the legal advice around it. We are happy to talk you through this issues to make sure the strict rules in this area are being taken into account.
What can I do if my loved one has already lost mental capacity?
Deputyships and applying to the Court of Protection
Sadly sometimes there is no warning that someone’s mental or physical capacity to manage their affairs will be reduced. If this has happened to a family member or loved one and they haven’t already appointed an Attorney, you may want to think about appointing a Deputy to look after their affairs instead. You will need to apply to the Court of Protection to be appointed or appoint a Deputy for that person.
At this distressing time our experienced team will be able to give you clear and sensitive advice. The application process to the Court of Protection can seem daunting but our team will guide you through the process so that you understand what is involved, what forms you need to complete and also be able to advise you on your application.
Care home funding and challenges
When a loved one enters nursing care there is a lot to deal with – both emotionally in accepting that it is no longer possible to live at home, but also in practical issues, like how care is going to be funded.
In 2015 the rules relating to care home funding changed. Depending on your circumstances assistance with care fees may available from either the local authority or the NHS.
Local Authority care funding
If the local authority is helping to fund care they will need to carry out a financial assessment.
Our specialist team can advise you on this assessment and let you know what forms of capital should be included, disregarded and what extra allowances are available to a spouse remaining in the family home.
Local authorities now have to offer Deferred Payment Agreements to people so that they are not forced to sell their home during their lifetime to pay for care in a care home. They are also encouraged to offer that scheme to people who might want to move to supported living accommodation. Our team can advise you on this.
NHS care funding
If a person has a ‘primary health need’ they might be entitled to receive free care under NHS Continuing Health Care. This is not means-tested and so it doesn’t matter whether a person has available funds or not. However, the application process can be lengthy and complicated. Decisions can be contested if appropriate. Again this is a process our legal specialists can help you or your family with.
Advice in the area of care funding and homes includes:
- General care home advice – on support and funding
- Assessments advice – before discharge from a hospital or entering a care home – both financial and care needs based
- Help with Deferred Payment Agreements queries and issues
- Advice relating to NHS Continuing Health Care applications and eligibility
- Signposting to organisations which can offer assistance to help you or your loved one stay independent for as long as possible.
Deprivation of liberty
If you have a loved one living in a care home you may have come across this term. Many care home residents are lawfully deprived of their liberty and care homes have a duty to take certain procedures to make sure that deprivations of liberty are appropriately documented.
Sometimes there can be disputes about whether it is in a person’s best interests to be deprived of their liberty and our experts can advise on these disputes. Similarly, sometimes families who have relatives or friends in hospital will hear this phrase used as a patient can also be being deprived of their liberty. Just like care homes, hospitals also have a duty to take steps to authorise and document that deprivation. Again, sometimes families wish to challenge the steps taken by the authorities, which our experts are here to assist with.
Finally, sometimes a person may be being deprived of their liberty even when living in their own home and when everything possible is being done to make sure they receive the best possible care. Again our experts can advise on what if any steps family members or care providers need to take to make sure that any deprivation of liberty is lawful.