If you find yourself asking questions like “how to get power of attorney for elderly parent with dementia?” it may already be too late! Swift action may prove critical to the well being of your loved one. Get in touch with Confidence Wills (www.confidencewills.co.uk) or an alternative advisor IMMEDIATELY if you are in this position!
- You can only create a Lasting Power of Attorney if you have mental capacity.
- The alternative to a Lasting Power of Attorney is a ‘Deputyship’.
- Mental capacity in dementia patients often fluctuates.
The term ‘Power of Attorney’, in the context of the above question, refers to documents called ‘Lasting Powers of Attorney’.
Briefly, there are two types of Lasting Power of Attorney (“LPA”): the ‘Health and Welfare’ LPA and the ‘Property and financial affairs’ LPA. Both allow a ‘Donor’ to appoint ‘Attorneys’ to act on their behalf should they lose mental capacity.
The ‘Property and Financial Affairs’ LPA permits your attorneys to make decisions about the management of your money and property. The ‘Health and Welfare’ LPA permits your attorney to e.g. make decisions around ‘life sustaining treatments’ or to give consents for medical interventions.
How to get power of attorney for elderly parent with dementia? Mental Capacity is Key!
Lasting Powers of Attorney can only be attained for those who have mental capacity at time of application.
Where a party lacks mental capacity a ‘Deputyship’ must be sought, via the courts. Pursuit of a deputyship is much more protracted, costly and onerous (in terms of monitoring/reporting requirements) than an LPA.
If there is doubt about mental capacity you should seek an assessment from a professional assessor. An assessor will typically gauge mental capacity via testing.
Should the assessor feel the applicant to have mental capacity they will so state on the client’s LPA application, however, if they do not, they will often instead complete a ‘COP3’ form, stating a lack of capacity and permitting pursuit of Deputyship through the courts.
Notwithstanding the role of professional assessors, there are certain points regarding mental capacity, in the context of LPAs, which it is important for the loved ones of those seeking these valuable documents, to understand.
- Capacity is time specific and may fluctuate. Different types of dementia tend to be associated with different patterns of lucidity. Vascular dementia may feature weeks of clarity on a patient’s part, interspersed with confusion, Alzheimer’s patients’ cognitive status may rise and decline on a 24 hour cycle. The time of engagement, with respect to completion of any LPA application, may be critical.
- Capacity is task specific. Giving an instruction to make an LPA is a single, time bound event. The applicant need only have capacity whilst giving the instruction. Further, said capacity need only be in relation to issues falling within the scope of the instruction.
- The use of a professional (such as Confidence Wills) is strongly advised. Registration of an LPA may take months, an error in the application may take weeks or months to detect and correct, by which time the applicant may have deteriorated (more than 20,000 LPA applications were rejected last year). Moreover, with respect to mental capacity, it’s not unknown for a professional’s contemporaneous records to override post-hoc medical opinions (e.g. Burgess v Hawes 2013).
To re-state, if a relative has suspected dementia and lacks a Lasting Power of Attorney, act now! Contact us via www.confidencewills.co.uk for a no obligation chat.