Dementia - How to Protect Yourself Legally in the Event of a Diagnosis
Dementia is caused by a number of diseases that affect the brain. There are several different types of dementia, the most common of which is Alzheimers. Different types of dementia affect the brain in different ways and at different rates and an initial diagnosis of dementia does not mean that you no longer have mental capacity.
Dementia is a progressive disease and whilst it is not certain that you will fully lose your mental capacity, your capacity will degenerate over time. Initially the first thing that tends to be affected is your short-term memory but Dementia can also affect your movement, your speech, how you think and communicate.
If you are diagnosed with Dementia or another degenerative illness then it is important to consider who would look after you in the event of loss of mental capacity entirely. It is especially important to remember that no-one will be entitled to make any decisions for you in respect of either your health or your financial affairs unless they are legally appointed to do so. Many people believe that if they are married that their spouse will simply be able to take control of the management of their health and finances but unfortunately this is not the case.
The easiest way to ensure that someone can look after your affairs in the event of you becoming incapable of doing so is to draw up a Lasting Power of Attorney (LPA). An LPA is a legal document whereby you appoint someone to act as your Attorney which will allow them to sign documents and make decisions on your behalf. There are two different types of LPA, one appoints Attorneys to act on behalf of your Property and Financial Affairs and the other allows your Attorneys to act on behalf of your Health and Welfare.
An Attorney appointed under a Property and Financial Affairs LPA can manage your finances and property. This will include bank accounts, pensions, business interests, shares, sale and purchase of property and paying bills. The Attorneys would be able to deal with all aspects of your financial affairs.
An Attorney appointed under a Health and Welfare LPA will be able to make decisions in respect of all aspects of your health but cannot do so unless you are unable to make a decision for yourself. The decisions that they are able to make might relate to where you live, what care might be appropriate, what medical treatment you have, diet, dress, routine and any other decisions that affect your wellbeing.
If you did not have an LPA drawn up and you became mentally incapable of dealing with your affairs in the future, then it would be up to one of your relatives or friends to apply to the Court of Protection to be appointed as your Deputy. The application process for appointing someone to be a Deputy can be very time consuming and is a very expensive route to take. It is necessary to obtain a Doctor’s report to confirm that you do not have capacity and these can vary in price depending on the doctor. The Court fee for obtaining a Deputyship order is £400 as opposed to £110 for registering an LPA. Solicitor’s fees are set by the Court in respect of Deputyship applications and are currently £875 + VAT, much more expensive than having both types of LPA drawn up.
Whilst the application to be appointed as a Deputy is dealt with, there will be no-one to act for you in respect of your finances or your health. It is therefore possible that bills will go unpaid and you will have limited (if any) access to funds until such time as the Court Order is granted. It is also possible that loved ones will have no power to make any decisions about your health without a legal document allowing them to do so. This means that adult social services may have to make decisions about your health and welfare and more often than not this will be without consultation with your family.
For further information please contact a member of our Private Client team.