Capacity: you need to use it because you could lose it.
A dementia diagnosis can be a very challenging time for a person and their families. What can make this time even more stressful and challenging is if that person loses capacity before organising their personal affairs.
It is a sad fact that more people than ever facing the reality of living with dementia in the UK. There are currently approximately 900,000 people with dementia in the UK and this number is expected to rise to 1.6 million by 2040.
It is important to take stock and review your affairs. Emma Garfitt, partner in our wills and estates team explains some of the steps you can take which will help in the event of a dementia diagnosis.
Lasting power of attorney
Lasting power of attorney (LPA) allows people of your choosing to manage your affairs on your behalf if you are no longer able to. You can create a power of attorney for property and financial affairs and one for health and welfare. Without a power of attorney no one can automatically step in to manage your affairs, not even a spouse. Your family would need to apply to the Court of Protection.
If you have an old-style power of attorney — known as enduring power of attorney (EPA) — you should consider updating this. Your EPA cannot be used by your attorneys if you have lost capacity unless it is registered with the Office of the Public Guardian. Registration takes approximately four months and during this time your appointed attorneys will not be able to manage your finances. The new LPA can be registered immediately to avoid this delay.
If you have an EPA, this will only apply to property and financial affairs, and not health and welfare. You should therefore also consider creating a LPA for health and welfare. This allows your chosen attorneys to make decisions for you about medical treatment and care.
Providing for family and dependants
If you regularly give money to a family member, friend or charity you need to consider if you would want these transactions to continue if you lost capacity. This is especially something to be considered if a family member relies on financial support from you, such as the payment of school fees, or gifts are made for tax planning purposes.
Provision can be made through the appropriate drafting of lasting powers of attorney. You should also seek advice as to whether transactions and gifts like this could be classed as deliberate deprivation of assets by the local authority.
Make a will
If you do not already have a will in place it is vitally important that you make one. Without a will you have no control over who inherits or administers your estate. Dying without a will could also prove more costly, and it could take much longer to deal with the administration of your estate.
If you already have a will in place this should be reviewed with a solicitor. You should also review your will if someone diagnosed with dementia is named in your will as an executor or beneficiary. It is important to consider whether that person will still be able to deal with the administration of your estate or manage inheriting a large sum of money.
Even if you or a family member or friend has already been diagnosed with dementia it does not mean it’s too late to take action. Dementia doesn’t immediately mean the loss of capacity but we would advise that you review your affairs as soon as possible.
Talk to us today about any aspect of wills, lasting power of attorney, trusts and Court of Protection cases. All our wills and estates solicitors are full members of Solicitors for the Elderly and Dementia Friends. Call the team on 033 3344 9609 or email [email protected]
