When you make a lasting power of attorney, or ‘LPA’, you nominate individuals to make decisions on your behalf if there ever comes a time when you can’t make those decisions for yourself, for example, because you develop dementia. If you haven’t put the relevant documentation in place before the onset of the condition, you may eventually lack the mental capacity to do so. A question our expert wills and probate solicitors are often asked by clients whose loved ones have developed dementia is, ‘What happens if someone has dementia and no power of attorney?’

Here, we explain what lasting powers of attorney are and why futureproofing is so important. We then answer the question ‘What happens if someone has dementia and no power of attorney?’

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What Are Lasting Powers Of Attorney?

Lasting powers of attorney offer a cheap, convenient way of ensuring any decisions relating to your health and welfare or finances will be taken by someone you trust if you can’t make them for yourself.

There are two types of LPAs. One is known as a Health and Welfare LPA, and the other is known as a Property and Financial Affairs LPA.

When you make a Health and Welfare LPA, you choose people to make decisions relating to matters ranging from your daily hygiene routine to lifesaving medical interventions. When you make a Property and Financial Affairs LPA, you choose people to manage your financial affairs and deal with any property you own.

What Is Dementia?

Dementia is a condition that affects a person’s memory, intellectual functioning and other thinking abilities. The most common type of dementia is Alzheimer’s disease.

Over time, most people with dementia lose the ability to make their own decisions, such as those relating to their health, medical treatment, living arrangements and finances. This is known as ‘loss of capacity’.

How Do You Know If Someone Has Lost Capacity?

Identifying when someone has lost capacity is crucial in knowing whether they’re able to make their own decisions. Various factors should be considered when deciding whether someone has capacity, which include the following:

• Do they understand the information relevant to the decision they need to make?
• Can they weigh up all relevant information to reach a decision?
• Can they retain the relevant information long enough to reach a decision?
• Can they communicate their decision to others?
• Can someone with dementia make a power of attorney?

People living with dementia do not lose capacity overnight; it’s a gradual process. Accordingly, if you have been diagnosed with dementia, you may still be able to make a power of attorney, provided you have the requisite capacity. Essentially, you must have all the relevant information and be capable of retaining it.

The ‘relevant information’ for the purposes of making an LPA includes the following:

• The impact of the LPA.
• The benefits and disadvantages of making the LPA.
• Who your attorneys are under the LPA.
• The scope of your attorneys’ powers.
• When your attorneys can exercise their powers

What Happens If Someone Has Dementia And Has Made Powers Of Attorney?

If you have made a Health and Welfare LPA, it will come into play when you lose capacity, at which point your attorneys will take over your decision making. Your capacity may fluctuate, and your attorneys will give you as much assistance as you need at any given time.

Unless you state otherwise, your Property and Financial Affairs LPA will come into play as soon as you make it. However, most people specify that they should only take effect when specific events take place, such as when they lose capacity.

What Happens If Someone Has Dementia And No Power Of Attorney?

If your condition renders you unable to make your own decisions and you have not made a power of attorney, things can be incredibly difficult for your loved ones. They have no legal rights to make decisions on your behalf, even if they are your next of kin.

Decisions relating to your health and welfare will be taken by the professionals in charge of your care, such as your doctor or social worker. Whilst they should consult with your loved ones, they are not obliged to follow their wishes.

With regards your finances, your loved ones would not have access to your bank accounts to pay your bills or finance your care and they would not be entitled to deal with any property you own, such as renting it out or selling it.

What Can Your Loved Ones Do If You Have Dementia And No Power Of Attorney?

If you develop dementia and lose capacity, your loved ones’ only option if they wish to manage your affairs is to apply to Court to become a deputy. However, a deputy’s powers are limited compared to those of attorneys. Furthermore, deputies are subject to reporting requirements and must pay an annual fee to renew their deputyships.

If you need assistance with putting effective LPAs in place, our specialist wills and probate solicitors are on hand to help. With decades of experience assisting clients with planning for their futures, we‘ll ensure your arrangements accurately mirror your intentions, are legally effective, and protect your interests.

Reach out to Birch & Co’s specialist and supportive team today. Call us on 0191 284 5030 or complete a Free Online Enquiry now to get a bespoke fixed price estimate.

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