Preparing for dementia
High profile cases of relatively young people developing (and dying) of dementia, like Terry Pratchett, has helped to raise awareness of this pernicious disease. It is now recognised as disease which can strike at almost any time after middle age (and earlier for some unfortunate people) and, as we live longer and stay longer in the workplace, understanding the consequences of contracting dementia for us and our families is more important than ever. Dementia is a progressive disease which, although irreversible, does mean that those who contract it are likely to have time in the early stages to plan for the time when they lack capacity to manage their day to day affairs.
Establishing mental capacity
The incidence of cognitive impairment rises with age and symptoms of the disease including memory loss, mood changes and problems with communicating and reasoning may be apparent before a formal diagnosis of dementia is actually made. You may become increasingly aware that you are not functioning as well as you used to, or friends and family might have expressed concerns. Alternatively you may just have mild cognitive impairment, the symptoms of which are less severe than, but nonetheless similar to, dementia. Either way you need to see your GP to establish the stage you have reached. Understandably, most people are reluctant to confront such a devastating condition but the sooner you put plans in place to deal with the effects, the easier it is for you and, as importantly, your family and those who will care for you. The Mental Capacity Act 2005 incorporates safeguards for those who may not be able to make certain decisions as well as ensuring that any decisions made on behalf of someone who lacks capacity are in their best interests.
Power of Attorney: planning for the future
All adults should consider making a Lasting Power of Attorney (LPA) which comes in two parts: property and finance, and personal welfare. This gives you the control to appoint people you trust (a close relative, friend or professional adviser) to act on your behalf if you become incapable of managing your affairs. An LPA can only be made while you have capacity and can only be used once it is registered with the Office of the Public Guardian. You can also appoint different people to deal with the separate elements of the LPA depending on their skill set. It is worth noting that a personal welfare LPA can only be used once you have lost mental capacity whereas the property and finance LPA can be used if you are physically restricted, such as struggling to get to the bank.
However, LPAs only came into existence in October 2007. If you created a power of attorney before then, you have an Enduring Power of Attorney (EPA) which would have become valid as soon as it was signed by you and your attorneys. It will only be registered with the Office of the Public Guardian if all your attorneys agree that you lack mental capacity to manage your own affairs; if any of your attorneys disagree, then the EPA cannot be registered. If you decide to cancel your EPA in order to create an LPA, you can do so through a ‘deed of revocation’, approved by the Court of Protection, but only if you have mental capacity to make that decision.
What happens if I lack capacity and don’t have an EPA or LPA?
If you did not make an Enduring Power of Attorney and no longer have the capacity to make a Lasting Power of Attorney, then someone acting in your best interests (such as a close family member) can apply to the Court of Protection (which works closely with the Office of the Public Guardian) to become a deputy to manage your affairs. In the absence of a suitable person to fulfil this role, the Court of Protection will appoint a professional deputy. Deputies are fully accountable to the Court at all times. The disadvantage of leaving the process to the Court of Protection is twofold: first, you will have no say in who is appointed as your deputy; and second, the process of appointing a deputy can be lengthy meaning that your affairs could be left unmanaged and vulnerable.
The importance of making a will before you lose capacity
A will enables you to leave your money and possessions to those you wish to receive them and can help to reduce inheritance tax. Without a will, the intestacy rules apply which means your estate is divided between your relatives in order of priority (primarily spouse and children, but not grandchildren). If you have lost capacity and have not made a will your attorney, or deputy, can apply to the Court of Protection to make a statutory will. This can be a lengthy process as the Court must consider if doing so is in your best interests and, if it does, it may take time to establish your likely wishes.
Although it is tempting to put off thinking about a future where you lack mental capacity, the fact that we are all living much longer means that more and more of us will suffer from dementia. At present, the only way of reducing the likely burden on those whose task it will be to care for us is to write a will and create an LPA while we have capacity. This will enable us to retain a degree of control over our future as well as reducing the administrative and emotional strain on our families and friends.
To support this, we have created a detailed legal guide to dealing with dementia, which you can access by clicking here.