Living with Dementia September 2008

By Sara Wilcox, Legal and Welfare Officer

It is beneficial for people with dementia to set up an LPA when they have mental capacity because it gives them a say in who might manage their affairs in the future. It can also make life much easier for people trying to care for the person when they lose capacity.

Lasting powers of attorney (LPA) replaced Enduring Powers of Attorney (EPA) in 2007, when the Mental Capacity Act came into force. There are two types of LPA; one for personal welfare and one for finance and property. This article focuses on the latter.

By setting up a property and affairs LPA, people with dementia can choose someone they trust (the attorney) to make decisions on their behalf. These decisions can include paying your bills, collecting your income and benefits, or selling your house. People can choose different attorneys to advise on different matters if they wish, or just one person.

A financial LPA can only be used once the form is registered at the Office of the Public Guardian*. The LPA may be used when the person still has capacity, but this depends upon how it has been worded.

Cost
People have complained about the cost of setting up an LPA. Although it is not legally required for people to use a solicitor to help them complete the form, Alzheimer's Society recommends using one if possible. An LPA is in important legal document and any mistakes may mean that the form is invalid. As the forms are much longer than those for the previous Enduring Power of Attorney, solicitors are charging more. It may be best to contact more than one solicitors firm to compare prices first. You can contact Alzheimer's Society National Dementia Helpline on 0845 300 0336 for advice on where to start. 

The Court of Protection (which makes decisions on the validity of LPAs among other things) has been inundated with LPAs and at time of writing it is taking up to 20 weeks for these forms to be registered and returned. This situation ought to improve over time and the court is aware of the problems that delays can cause for attorneys.

Deputies
If someone has lost the capacity to draw up an LPA someone may apply to the Court of Protection to become their deputy. This is a more complicated process and more expensive than registering an LPA; another reason why it is a good idea to set up an LPA at your earliest opportunity. However, if someone has very limited resources the court has discretion to reduce or waive fees.

Alternatives
Some families decide that they only need to manage the pension and welfare benefits on behalf of the person with dementia. If this option appeals, you can choose to become an appointee through the Department of Work and Pensions. In this instance, a representative from the DWP will visit you and the person with dementia to ensure they understand how the arrangement works.

It is possible to help a person with dementia with their bank account by holding what is known as a third party mandate on the account. In this case, a person with dementia agrees that a friend or relative can access their bank account at any time. This must be arranged in person with the bank and the person with dementia must have capacity to understand the implications of the arrangement.

If at any time the bank felt that the account holder had lost capacity to manage their finances, they would be at liberty to revoke the third party mandate and ask the friend or relative to provide proof that they had authority to manage the finances with either an LPA or deputy order from the Court of Protection.

*You can obtain LPA forms from the Office of the Public Guardian, which is responsible for the registration of LPAs. You can call the OPG on 0845 330 2900, or visit the website at http://www.publicguardian.gov.uk/