power of attorney dementia

December 2023

Getting A Lasting Power of Attorney For An Elderly Person In December 2023

When an elderly parent is diagnosed with dementia, it can take time before they become fully incapacitated. Many people might be wondering “can you get power of attorney for someone with dementia?”

This article will look at some of the issues need to consider when getting a power of attorney for someone with Dementia.

Topics that you will find covered on this page

What is a power of attorney?

A power of attorney is a legal document that grants an individual, known as the attorney-in-fact or agent, the authority to act on behalf of another person, known as the principal. 

Depending on the parameters provided in the power of attorney form, this authority empowers the attorney-in-fact to make choices and take acts in a variety of contexts, including financial, legal, and healthcare problems. 

The power of attorney can be customised to the principal’s unique requirements and preferences, and it can be either temporary or durable, meaning it will still be functional even if the principal is rendered incapable. 

This legal arrangement gives people a way to give someone they trust authority over key decisions, protecting their interests and helping individuals in making legal decisions for elderly parents.

Can You Set Up a Power of Attorney For Someone With Dementia?

You may be wondering: Can I get power of attorney for someone with dementia? In the UK, people with dementia are not automatically restricted from setting up an LPA. However they may lack the necessary understanding and mental capacity required to do so. It can then be difficult to figure out how to get power of attorney for dementia patients.

If someone with dementia wishes to have a Lasting Power of Attorney set up but lacks full mental capacity, there is a process called ‘deputyship’ which can be used instead of become power of attorney for parent with dementia.

Power of Attorney requires setting up an application for deputyship via the Court of Protection, and takes around three months.

During this time, two doctors must provide medical evidence that confirms the person cannot make decisions for themselves, and the court will decide whether to appoint a deputy.

The appointed deputy is given legal authority to make decisions on behalf of the person with dementia, in areas such as finance or welfare.

Depending on the type of power granted, this could include decisions about buying and selling property, handling bank accounts or investing money. The Court of Protection requires that deputies act in accordance with their Code of Practice which sets out minimum standards for managing someone else’s affairs.

dementia lasting power of attorney

Does someone with dementia lack mental capacity? Can a person with Alzheimer’s sign a power of attorney?

Everyone’s situation is unique regarding dementia, so the response to this inquiry varies according to a person’s exact circumstances and stage of memory decline. If someone does lack mental capacity, that can make obtaining power of attorney for elderly parents or relatives more difficult.

It is worth noting that individuals with dementia do not necessarily lack legal mental capacity, instead, this factor should be evaluated on an individual basis.

It is also important to remember that an individual’s mental capacity should be assessed in relation to specific decisions or actions rather than their overall level of cognition.

For example, someone with early stages of dementia may still have the capacity to make decisions about day-to-day activities but might lack the mental capacity for more complex financial decisions.

When assessing an individual’s mental capacity, experts use a checklist called the Mental Capacity Act 2005 (MCA). The basic principle of this act is that every adult has the right to make their own decisions and must be assumed to have capacity unless it can be safely established that they lack the ability to make a particular decision.

For someone with dementia to be considered as lacking mental capacity, certain criteria must be met. These criteria include the following –

  • the person’s understanding of the situation
  • their ability to weigh up options
  • their memory when recalling information, and
  • any communication difficulties which might affect their understanding or expression of opinion.

How to get power of attorney for someone who is incapacitated? 

Obtaining power of attorney for someone incapacitated requires following specific steps to protect their interests.

First, it is essential to understand the legal definition of incapacitation, which typically refers to the inability of an individual to make decisions due to physical or mental limitations.

To become power of attorney for an incapacitated person, you must initiate the legal process, which may vary depending on the jurisdiction. This usually involves filing the necessary paperwork, such as a petition or application, with the appropriate court.

The court will then assess the person’s capacity and make a determination.

It is advisable to seek legal guidance and assistance throughout the process to ensure compliance with local laws and regulations and protect the rights and well-being of the incapacitated individual while obtaining the power of attorney.

What is a Lasting Power of Attorney?

A lasting power of attorney (LPA) is a legal document stipulating attorney(s) mandated with the responsibility of making major decisions on behalf of someone else.

There are two types of LPA documents as detailed here:

Property and financial affairs power of attorney

A property and financial affairs power of attorney allows the appointed person to make decisions about the collection of pension, payment of bills, banking, selling or buying of houses, and other financial accounts. If granted permission, the attorney can take up the role immediately after drawing the document.

Health and welfare power of attorney

The person with the health and welfare power of attorney has a responsibility to make decisions on such things as:

  • regarding life-sustaining medications
  • whether the elderly should move into a home for the elderly; and
  • other health-related issues.

However, the attorney can only make health decisions when the sick person doesn’t have the right mental ability to make their own decisions.

An appointed attorney can assume the property and financial affairs power of attorney and the health and welfare power of attorney. They can also assume just one of the two. This means that two people can have the mandate to make major decisions regarding a person with dementia.

A video explaining how a Lasting Power of Attorney works

It is advisable for the elderly to appoint a power of attorney to make decisions on their behalf. Such choices include those regarding health, welfare, and finances.  This should be done as soon as possible.

This is because as dementia progresses they will find that their mental capacity worsens, which in turn will mean they can not consent to the power of attorney.  If this is left too late, you will need to apply to the court of protection, which can take significant time and expense.

Having a trustworthy person to execute your wishes would ensure your wishes are fulfilled and, at the same time, it would give your family peace.

What are the different types of Power of Attorney?

In the UK, there are three main types of Power of Attorney

1 – Enduring Power of Attorney (EPA)

An Enduring Power of Attorney (EPA) allows you to appoint someone to manage your financial affairs even if you become mentally incapable of doing so yourself. Your chosen attorney can then pay your bills, manage your investments and access bank accounts on your behalf.

2 – Lasting Power of Attorney (LPA)

An LPA is similar to an Enduring Power of Attorney but goes further in that it also covers decisions about health and welfare, such as what kind of care you’d like to receive and where you should live. You can also get a Power of Attorney to cover your financial affairs. More on this below.

3 – General Power of Attorney (GPA)

A General Power of Attorney is a temporary arrangement, usually lasting no more than 12 months. It allows you to appoint someone to manage your financial affairs while you’re abroad or otherwise unable to do so.

Each type of Power of Attorney has its own set of rules and regulations which must be followed in order for it to be valid under UK law.

Each type of LPA can also have different types of restrictions placed on it and therefore requires careful consideration before appointing an attorney. It’s essential that the person chosen as your attorney understands their role and acts in accordance with your wishes and best interests at all times.

Mental Capacity Act

Only a mental capacity assessor can decide that a person is incapable of making significant decisions.

The Mental Capacity Act also stipulates that the person granted power of attorney should act in the best interest of the said person. However, before appointing a person to act on your behalf, or even make a will, you must be in the right mental state.

What about Married Couples?

It is not uncommon for married couples or close relatives to think that they’ll take up the role of making significant decisions for their mentally incapacitated relative.

However, if the elderly had not drawn the power of attorney document, then the court has to be involved. The relatives have to go through the court of protection so that they’re allowed to act as the deputy to the ailing person.

The Role of the Court of Protection

The court of protection makes decisions for people who can’t do so due to their mental ability.

Therefore, if you are unable to set up a lasting power of attorney, then this is likely to be the only option available to you.

The district judges, together with a senior judge, often preside over cases presented in the court. Other times, the cases are handled by the High Court judges. Some of the roles that the court carries out include:

– Deciding whether a person has mental incapability
– Registration of the lasting power of attorney documents
– Evaluating objection requests to the LPA
– Appointment of deputies to act on behalf of a mentally ill person
– Deciding whether someone should be denied their freedom to make decisions
– Granting permission to close relatives to make one time decisions on behalf of an elderly person with dementia
– Looking into emergency applications

A video explaining how the court of protection works

What happens if you don’t have an LPA?

If you do not have a Lasting Power of Attorney (LPA) in place and are unable to make decisions for yourself, either due to illness or incapacity, your family will have limited options when it comes to making decisions on your behalf.

Although it is possible to apply for an Emergency LPA or Deputyship Order for a dementia patient with no power of attorney, this can be both time-consuming and expensive.

An alternative option is to appoint someone else, such as a close friend or professional adviser, as a ‘Informal Deputy’.

This gives the deputy the power to act on your behalf in financial matters only and is not recognised by law. It also means there is no clear process or set of rules that need to be followed.

When assuming this role, it is essential to be aware of both the risks and responsibilities that come with being an informal deputy. Additionally, any decisions made may be called into question in a court of law if necessary.

Getting power of attorney for parent with dementia is very important before mental incapacity prevents it.

What is the difference between a power of attorney and a lasting power of attorney?

The main difference between a power of attorney (POA) and a lasting power of attorney (LPA) lies in their scope and duration. 

In accordance with the terms of a power of attorney, one person, known as the attorney-in-fact or agent, is given the legal right to act on behalf of another person, known as the principal, under certain circumstances. 

A standard POA, however, usually expires if the principal becomes mentally unable. A lasting power of attorney, on the other hand, continues to be in effect even if the principal loses mental ability, enabling the attorney-in-fact to continue acting on their behalf. 

An LPA provides a thorough and durable structure for decision-making when the principle is no longer capable, covering two important areas: health and welfare issues and financial and property matters.

How much is the cost of power of attorney?

You might be concerned about power of attorney costs when applying for power of attorney for someone with dementia or when applying as PoA for elderly parents.

Drafting your power of attorney agreement using online resources is possible when getting a power of attorney for elderly parent.

However, the chances of missing out on some important details are high. It is, therefore, advisable that you involve an advisor or specialist solicitor to help you. If you seek the services of a solicitor, you can expect to incur the Lasting Power of Attorney costs. However, the cost of power of attorney is well worth it because you’ll rest assured that all your requirements are put into detail.

The costs for a single power of attorney are usually around £325 plus VAT, so around £400 in total.  However, with the deal that we have with Co-op Legal Services, the costs start at only £165 plus VAT.

lasting power of attorney dementia

How To Get Power Of Attorney For Elderly Parent

The power of attorney agreement is registered with the office of the public guardian.

The office allows you to submit the documents yourself or your attorney can do it on your behalf. But what if someone registers illegally using your name? Well, no need to worry because the office notifies the subjects even before processing the applications.

You can even involve your family or friends whom you would want to be notified before the implementation of the agreement. You can do that by sending them some forms to fill so that you submit them together with your application. The people to notify will then be informed before commencement of the registration.

Your close relatives, friends, or even you have the opportunity to express your concerns regarding the application within three weeks. The office of the public guardian keenly looks into any objections before proceeding with the process. If nothing is raised and the information provided is valid, the power of attorney document is processed within ten weeks.

How to Change Power Of Attorney For Someone With Dementia?

As the person must be of sound mind to make such a choice, changing a Power of Attorney for someone with dementia might be challenging. The ability to make a certain judgement at the appropriate time is referred to as mental capacity. 

The existing Power of Attorney will be automatically revoked once the new one is registered if the person with dementia still has the mental capacity to comprehend the ramifications of doing so. 

However, the power of attorney cannot be changed if the person no longer has the mental capacity to make decisions regarding their financial or wellbeing. 

In this situation, it might be essential to apply to the Court of Protection for a deputyship order, which will provide the deputy the legal ability to make decisions on behalf of the person with dementia, if there are concerns about the actions or judgements of the current attorney. To fully grasp the options and procedures, it is advisable to seek legal counsel.

"Having a trustworthy person to execute your wishes would ensure your wishes are fulfilled and, at the same time, it would give your family peace."

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What Happens After Death?

The topic of death is not interesting to discuss, but it ultimately happens. Therefore, as you convince your elderly relative to register for a power of attorney agreement, also encourage them to make a will. If the deceased had left a will, then the executors are granted probate to manage the property of the said person.

However, if no will was issued by the deceased, then you need to apply for the Letters of Grant of Administration.

Registration of probate is done at the probate registry. You can learn more about probate and the fees involved here.

get power of attorney from elderly parent

Advance Statements and Advance Decisions?

Advance statements and advance decisions can be used to express your wishes ahead of time.

Producing an advance statement is a key way to ensure that your wishes are respected should you ever become unable to make decisions for yourself. It’s a great tool, as it helps others understand what kind of care or treatment would align with your values and beliefs in different circumstances.

Having this document provides peace of mind knowing that you’ll be cared for the way you’d want if something happens.

Taking the time to create an advance decision is essential, as it allows you to decline certain treatments or life-sustaining measures in a legally binding manner. To make your wishes known, this document must be written up and signed by both you and two independent witnesses, all of which will provide peace of mind for yourself and those closest to you.

Additionally, these documents are often referred to as living wills or advanced directives.

Both an advance statement and an advance decision provide you with peace of mind that your wishes will be respected if you can’t make decisions for yourself.

It is important to remember that while they are useful tools, they may not cover all eventualities and should always be used in conjunction with an LPA.

An LPA provides a much more comprehensive solution as it allows someone else to take control of your affairs in the event that you become incapacitated. This includes both health and welfare decisions as well as financial decisions.

It also helps ensure that your wishes are adhered to, regardless of changing circumstances or care needs over time.

What is a Living Will For Someone With Dementia?

A Living Will can be an important part of a person’s estate planning if they suffer from dementia.

A Living Will is a legal document that sets out the care preferences and wishes of someone with dementia in the event they become unable to make decisions or communicate those decisions due to their condition. It gives family, friends, and health professionals an understanding of how the individual wants to be cared for.

Making a Living Will can help ensure that your wishes are known even if you cannot express them yourself in the future due to memory loss or other symptoms of dementia.

It should include specific details such as what kind of medical treatments the individual would want, who can make decisions on their behalf, and any desired end-of-life arrangements.

How to get Power of Attorney for elderly parent with dementia who does not already have a power of attorney in place

So, how to get power of attorney for a parent with dementia with no power of attorney already in place?

If someone has dementia and does not have a power of attorney in place, it can present challenges when it comes to managing their affairs. Without a power of attorney, family members or loved ones may face difficulties in making legal and financial decisions on their behalf. 

In such cases, it may be necessary to explore other legal avenues, such as seeking an elder care power of attorney or pursuing a dementia deputyship through the Court of Protection. 

These processes involve applying to the court for the authority to act as a deputy and make decisions as a power of attorney if someone has dementia. It is advisable to seek legal advice and guidance to navigate these options and ensure that the individual’s best interests are protected while managing their affairs effectively.

Conclusion

An elderly person diagnosed with dementia should grant a trusted person with powers of attorney before symptoms get worse. Getting power of attorney for an elderly parent or relative before they become incapacitated is imperative. With the powers of attorney document, relatives and friends have peace knowing what to do in different situations.

The LPA exist in two different types, the Health and welfare power of attorney and the Property and financial affairs power of attorney.

All registration of these agreements is done by the office of the Public Guardian. Any disputes regarding the execution of the powers of attorney or determination of mental incapacitation are ruled by the Court of Protection. As an elderly person with dementia passes on powers to make major decision to loved ones, they should also be convinced to make a will.

Meet the author

Rob Atherton

Rob Atherton

Rob writes and edits the content produced by the rest of the team. He has a degree in History from Leeds University and has producing, reviewing and editing the site since 2016

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dementia and power of attorney When an elderly parent is diagnosed with dementia, it can take time before they become fully incapacitated. It is, therefore, advisable for the elderly to appoint a power of attorney to make decisions on their behalf. Such choices include those regarding health, welfare, and finances.  This should be done as soon as possible. This is because the dementia progresses they will find that their mental capacity worsens, which in turn will mean they can cannot consent to the power of attorney.  If this is left too late, then you will need to apply to the court of protection, which can take a significant amount of time and expense. Having a trustworthy person to execute your wishes would ensure your wishes are fulfilled and, at the same time, it would give your family peace.

Mental Capacity Act

Only a mental capacity assessor can decide that a person is incapable of making major decisions. The Mental Capacity Act also stipulates that the person granted power of attorney should act in the best interest of the said person. However, before appointing a person to act on your behalf, or even make a will, you must be in the right mental state.

What is a Lasting Power of Attorney?

A lasting power of attorney (LPA) is a legal document stipulating attorney(s) mandated with the responsibility of making major decisions on behalf of someone else. There are two types of LPA documents as detailed here:

Property and financial affairs power of attorney

A property and financial affairs power of attorney allows the appointed person to make decisions about the collection of pension, payment of bills, banking, selling or buying of houses, and other financial accounts. If granted permission, the attorney can take up the role immediately after drawing the document.
 

Health and welfare power of attorney

The person with the health and welfare power of attorney has a responsibility to make decisions on such things as:
  • regarding life-sustaining medications
  • whether the elderly should move into a home for the elderly; and
  • other health-related issues.
However, the attorney can only make health decisions when the sick person doesn’t have the right mental ability to make their own decisions. An appointed attorney can assume the property and financial affairs power of attorney, as well as the health and welfare power of attorney. They can also assume just one of the two. This means that two people can have the mandate to make major decisions regarding a person with dementia.

Book an appointment with Power of Attorney Specialist

To make things easier you can book an appointment on the calendar below and someone from Quadrant Estate Planning will call you at the allotted time.
 

What about Married Couples?

It is not uncommon for married couples or close relatives to think that they’ll take up the role of making significant decisions for their mentally incapacitated relative. However, if the elderly had not drawn the power of attorney document, then the court has to be involved. The relatives have to go through the court of protection so that they’re allowed to act as the deputy to the ailing person. How to get a lasting Power of Attorney

The Role of the Court of Protection

The court of protection makes decisions for people who can’t do so due to their mental ability. Here is a short video that explains more about the court of protection. Therefore, if you are unable to set up a lasting power of attorney then this is likely to be the only option available to you. The district judges together with a senior judge often preside over cases presented in the court. Other times, the cases are handled by the High Court judges. Some of the roles that the court carries out include: – Deciding whether a person has mental incapability – Registration of the lasting power of attorney documents – Evaluating objection requests to the LPA – Appointment of deputies to act on behalf of a mentally ill person – Deciding whether someone should be denied their freedom to make decisions – Granting permission to close relatives to make one time decisions on behalf of an elderly person with dementia – Looking into emergency applications

Power of Attorney Costs

Drafting your power of attorney agreement using online resources is possible. However, the chances of missing out on some important details are high. It is, therefore, advisable that you involve an advisor or specialist solicitor to help you. If you seek the services of a solicitor, you can expect to incur the Lasting Power of Attorney costs. However, the costs are well worth it because you’ll rest assured that all your requirements are put into detail. The costs for a single power of attorney are usually around £325 plus VAT, so around £400 in total.  However, with the deal that we have with Co-op Legal Services, the costs start at only £165 plus VAT.

The Registration Process of a Power of Attorney

The power of attorney agreement is registered with the office of the public guardian. The office allows you to submit the documents yourself or your attorney can do it on your behalf. But what if someone registers illegally using your name? Well, no need to worry because the office notifies the subjects even before processing the applications. You can even involve your family or friends whom you would want to be notified before the implementation of the agreement. You can do that by sending them some forms to fill so that you submit them together with your application. The people to notify will then be informed before commencement of the registration. Your close relatives, friends, or even you have the opportunity to express your concerns regarding the application within three weeks. The office of the public guardian keenly looks into any objections before proceeding with the process. If nothing is raised and the information provided is valid, the power of attorney document is processed within ten weeks.

What Happens After Death?

The topic of death is not interesting to discuss, but it ultimately happens. Therefore, as you convince your elderly relative to register for a power of attorney agreement, also encourage them to make a will. If the deceased had left a will, then the executors are granted probate to manage the property of the said person. However, if no will was issued by the deceased, then you need to apply for the Letters of Grant of Administration. Registration of probate is done at the probate registry. You can learn more about probate and the fees involved here.

Conclusion

An elderly person diagnosed with dementia should grant a trusted person with powers of attorney before symptoms get worse. With the powers of attorney document, relatives and friends have peace knowing what to do in different situations. The LPA exist in two different types, the Health and welfare power of attorney and the Property and financial affairs power of attorney. All registration of these agreements is done by the office of the Public Guardian. Any disputes regarding the execution of the powers of attorney or determination of mental incapacitation are ruled by the Court of Protection. As an elderly person with dementia passes on powers to make major decision to loved ones, they should also be convinced to make a will.

Book an appointment with a Co-op Power of Attorney Specialist

To make things easier you can book an appointment on the calendar below and someone from Quadrant Estate Planning will call you at the allotted time.
 
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