In addition to not making a Will, many of us also neglect to arrange a Power of Attorney in good time meaning loved ones will often carry the burden of having to arrange a Power of Attorney for someone with Dementia, post diagnosis.
If you’ve recently been diagnosed with Dementia, or you’re close to someone who has, you will need to consider questions like, “Can you get Power of Attorney for someone with Dementia?” or “Can a person with Dementia sign legal documents?”
Here's what you should know and what you should do when someone diagnosed with Dementia needs or wants to make a Will or Lasting Power of Attorney (LPA).
Dementia and the law (in England and Wales)*
Under the Mental Capacity Act, Dementia patients are protected and empowered to continue making their own decisions about their finances, care and treatment, until such time as an NHS medical professional is approached to assess and determine if they lack capacity.
Before any such test or assessment is carried out, a Dementia patient should receive as much assistance and help as possible from a close relative, friend, social worker or carer, in trying to make an informed decision by themself.
Under the Act, if an assessment becomes necessary and subsequently reveals a Dementia patient lacks mental capacity, then any decision made on their behalf - under a pre-existing Lasting Power of Attorney - must be in their best interests.
If you know someone with Dementia and no Power of Attorney UK, you should tactfully suggest that they arrange an LPA as soon as possible while they still have the mental capacity to do so.
The Alzheimer’s Society provides helpful tips on how best to communicate with a person with Dementia so they can better understand you.
You can also read more in-depth information about Dementia and the Mental Capacity Act on The Alzheimer’s Society website. You can also find out more about recent amendments and updates to the Act in 2018 whereby the ‘Deprivation of Liberty Safeguards’ (DoLS) was replaced by the Liberty Protections Safeguards on the government’s website.
*LPAs are different in Northern Ireland and Scotland.
Can you make a Will with Dementia?
If you have mild Dementia and/or have only recently been diagnosed, and if you and someone close to you who you trust, still think you have the mental capacity to make informed decisions then, yes, you can make a Will with Dementia.
However, to save any potential disputes at a later date, you should seek confirmation from a health professional that you’re still capable of making a Will (have mental capacity) and arrange for a copy of the letter confirming your mental capacity is filed with your Will.
Read: How much does it cost to make a Will?
How to get Power of Attorney for elderly parent with Dementia
How difficult it is to arrange a Power of Attorney after a Dementia diagnosis will depend on a person’s mental capacity and how far the Dementia has progressed.
For example, if the Dementia diagnosis was very recent and the diagnosed person still has mental capacity, then they can still usually choose and arrange their own Power of Attorney Dementia diagnosis has no bearing on what a person can or can’t do when they still have their faculties.
However, if you have an elderly parent with Dementia who lacks mental capacity to make decisions and you want to become their Dementia Power of Attorney UK you should first:
- make and attend a doctor’s appointment with them to request they are assessed for mental capacity.
- ask a doctor or healthcare provider to confirm, in writing, whether or not they think your parent still has the mental capacity to understand, make important decisions and choose their own attorney
If a doctor or healthcare professional thinks your elderly parent now lacks capacity to make decisions, instead of arranging an LPA you will instead have to apply for a Deputyship Order.
But, if your parent has recently been diagnosed with Dementia and/or it’s not very advanced, or a doctor concludes they’re still capable of fully understanding and making decisions then you should:
- ask your parent to choose one or more suitable attorney/s that they implicitly trust and then check with any other chosen attorneys (if any) that they are happy to take on the burden of this role (unless, of course, you’re taking on the role yourself).
- help your elderly parent make an online application for a Power of Attorney to save money and time, avoid the inconvenience of travelling or risk catching Covid-19.
- Decide if you only need one LPA or two - one LPA relates to property and finances and the other to health and welfare.
- Let Wills.Services’ professional LPA experts guide you through the LPA process.
Start your LPA application online
You might like: Lasting Power of Attorney - Should I get a Power of Attorney or is it a waste of time?
How to get Power of Attorney for someone with Dementia UK (who isn’t a close relative)
There is no set criteria that states you have to be a close relative, spouse, civil or common-law partner to get a Power of Attorney for someone with Dementia in the UK. The only legal criteria for becoming an attorney is that you are over 18 years old.
So if you are aware of a close friend or neighbour with no family or partner, then you should help your friend or neighbour make a doctor’s appointment with a view to being assessed for Dementia.
If a health professional confirms a Dementia diagnosis and also confirms, in their opinion, the person is no longer capable of making certain decisions, then you will instead need to apply for a Deputyship Order.
However, if your friend or neighbour receives a Dementia diagnosis but still has the mental ability to choose an attorney, they can do so.
They will need to give serious consideration, possibly with your help, about who the ‘best fit’ for this role is.
Here are some questions the person with Dementia should consider:
- Can this person competently manage their own finances and affairs?
- Can this person be completely trusted to make difficult decisions that will be in your best interests?
- Does this person have adequate spare time to deal with your affairs or are they already overstretched (i.e. have a large/young family and work very long hours)?
- Is this person dependable and do they live nearby? (Living nearby isn’t essential but can be very helpful.)
- Does this person have a certain skill set or profession that makes them particularly suitable to one particular role (e.g. a relative who is a doctor or nurse could be best placed to oversee your health and welfare, or a friend or relative who may be a solicitor or accountant could be the best person to look after your property and finances)?
You can choose to have more than one attorney and allocate different roles to each attorney - i.e. you could have one attorney for your Property and Financial Affairs LPA and a different attorney for your Health and Welfare LPA.
An attorney can also be a legal professional whose services you would have to pay for - this can be an especially good idea where there may be sibling rivalry conflict over who handles your finances or healthcare.
Start your LPA application online
Read more: Creating your Lasting Power of Attorney
What is an Enduring Power of Attorney for Dementia?
An Enduring Power of Attorney (EPA) is now obsolete and was replaced with the “Property and Financial Affairs Lasting Power of Attorney” in October 2007. However, any EPAs made, signed and witnessed prior to October 2007 remain valid for use or can be cancelled and replaced by the property and financial affairs LPA.
The only other type of LPA is the “Health and Welfare Lasting Power of Attorney”.
Can someone with Dementia sign legal documents UK?
Yes, as long as they have the mental capacity to do so and fully understand the implications of the document they are signing - this includes the signing of important legal documents such as a Will or a Power of Attorney.
However, if someone was diagnosed with Dementia some time ago and the disease has progressed to such a point that they may now lack mental capacity, you should seek the opinion of a medical professional regarding lack of capacity.
If a medical professional concludes the person with Dementia now lacks mental capacity then an LPA should be arranged by a close relative or friend.
If no-one is prepared to take on this responsibility or the person with Dementia is so lacking in mental capacity that an LPA isn’t possible, then talk to us about requesting a Deputyship Order instead.
You might like: Types of Power of Attorney in the UK
Can a person with Dementia change their Power of Attorney?
Again, if a person diagnosed with Dementia is still capable of understanding and making important decisions, they have the right to change their Power of Attorney and Dementia diagnosis by itself is never conclusive that someone lacks mental capacity.
Someone lacking capacity who has long-term Dementia and Power of Attorney will not be able to change their Power of Attorney without the Attorney’s approval and input.
