Coping with Alzheimer’s – a legal perspective

Posted on: December 17th, 2018

A diagnosis of dementia within your family can be daunting and devastating. Knowing that it is likely that your loved one will lose the ability to look after themselves is not only distressing, it also raises many questions. Annabelle Vaughan discusses how best to plan for the future with dementia.

First and foremost it is important to know that people with a diagnosis of dementia can often continue to lead full lives for a long period of time. There are many conditions that come under the umbrella of dementia, so it can be helpful to understand what type of dementia your relative has as this can help you understand what may happen.

It is also important to know that having a diagnosis of dementia does not mean that your relative automatically ceases to have the ability to make decisions for themselves. The Mental Capacity Act mandates a presumption of capacity so that an individual should be treated as having capacity unless it is established that they lack capacity. Whilst the person living with dementia retains their mental capacity it is helpful to start planning for a time when they will be unable to make decisions about their finances and how they are cared for.

The person with dementia should consider making Lasting Powers of Attorney (LPAs). These are legally binding documents that appoint other individuals (known as attorneys) to make decisions on behalf of the person that lacks capacity. They can cover both property and finances and health and welfare.

Making LPAs offers a good opportunity to discuss the wishes of the person who has dementia. They can put guidance and instructions in the document about what they want to happen when they lack capacity to make decisions themselves. It is important to read the guidance or take advice in this regard as some instructions may be unworkable.

The attorneys will have to make decisions in the best interests of the person who lacks capacity and so the Office of the Public Guardian will strike out any instructions that are unlawful or asks the attorneys to act beyond the scope of their statutory authority, for example by making large gifts from the estate of the person that lacks capacity.

If an individual does not have capacity to make LPAs then it may be necessary for the Court of Protection to appoint a deputy to act on their behalf. This is generally more costly and takes longer than the LPA process and is generally more restrictive on the person who is appointed. However, there are some perceived advantages such as greater supervision of the appointed deputy.

If your relative wants you to be an attorney or you are considering applying to be their deputy you should acquaint yourself with the Mental Capacity Act and consider this responsibility carefully. Although acting in someone’s best interests sounds simple there may be times when this is challenging, for example if there are complicated family dynamics. A deputy or attorney will not automatically have the authority to write or change the will of the person with dementia when they no longer have the capacity to deal with this themselves and so they may want to review this whilst they are able to.

It is important to have conversations about care and how that will be funded. It is tempting to seek to rely on local authority or NHS funding for care but most individuals with means will be asked to contribute towards their care and arguably this will provide them with more choice. Some of the things you will need to consider are how long your relative wants to be cared for at home and whether any care facilities you may choose will be able to care for your relative throughout the stages of their dementia, and whether they will accept local authority funding if your relative can no longer pay for their care.

The cost of care makes financial planning essential but it is important to look for an adviser who has a specialism – the Society of Later Life Advisers or SOLLA has a register of accredited independent financial advisers who have demonstrated a good understanding of the likely financial needs of someone living with dementia. There are a lot of companies that advertise means of ‘protecting’ family assets from care fees. Extreme caution should be taken if looking at these schemes as a local authority can claw back gifts made with the intention of avoiding care fees.

Happily awareness of dementia has increased hugely thanks to initiatives such as Dementia Friends. Businesses and services are more aware of the needs of people living with dementia. There are also support groups for those who care for people with dementia which can provide invaluable respite and information for carers.

We have a dedicated and experienced Court of Protection team, which can assist with LPAs, applications to the Court of Protection and deputyship matters.

For more information contact Annabelle Vaughan, Head of Care and Protection Sector or visit our Court of Protection page to find out more