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What is an Attorney?
A lasting power of attorney (LPA) is a legal document which allows a person to appoint one or more people to help them make decisions or make decisions on their behalf, should they have an accident or illness. This is particularly important for people diagnosed with any form of dementia as there may come a time when this person is unable to continue to make or communicate their own decisions.
The Two Types for Lasting Power of Attorney
There are 2 types of LPA; one covers health and welfare and the other covers property and financial affairs. It’s a good idea to have both in place.
An LPA for health and welfare can only be used if the person loses mental capacity. It allows attorneys to make decisions regarding where a person lives and what care they receive. These decisions must be in the persons best interests.
Without an LPA for health and welfare, any decisions around care will be made by professionals who may not be aware of all the person’s preferences. They should consult the family to make a best interest decision but ultimately, any decisions remain with them.
An LPA for finance can be used when the person loses mental capacity, however, it can also be used whilst the person still has capacity IF they think they may need support with their financial affairs. This option must be stipulated when setting up the LPA. The finance LPA enables attorneys to make decisions, manage finances, pay bills, arrange repairs or sell a property.
Without an LPA for finance, family will be unable to act on the person’s behalf when they no longer have capacity to do so. If they need to sell property or access finances, they will need to apply to the court of protection to become their deputy which can be both time-consuming and costly. We would always recommend getting an LPA in place whilst a person still has capacity to do so.
What are the Responsibilities of an Attorney?
To ensure that all decisions are made in the best interests of the person living with dementia.
To ensure that the persons instructions are carried out and that decisions benefit the person not the attorney.
To make all decisions, and not delegate to another party unless authorised to do so.
To must respect confidentiality.
To comply with any demands from the Court of Protection.
To always keep accurate records and accounts with regard to the donor's finances.
An attorney cannot stop their role without notifying the Court of Protection.
Taking on a Role as Attorney
Talking to the person with dementia is the best way to prepare yourself to take on the role of attorney. For example, ask about their plans for their money or how they want to be cared for if they become seriously ill.
As an attorney, it is important to support the person to make their own decisions whilst they are able to do so. Provide them with all the information they need to make a decision; they may need information in alternative formats and things may need to be explained in different ways, perhaps with images, and the conversation may need to be had a number of times.
Check the types of decisions you can make and when you can start acting for someone. For example, sometimes more than one person is appointed as attorney. This can be set up either as “jointly”, meaning all the attorneys must agree for any decision, or “jointly and severally” meaning decisions can be made alone or together.
Ensure that you are registered as an LPA. It can take up to 20 weeks to process and an attorney cannot act on someone’s behalf until the LPA is registered.
How Can an Attorney Best Support the Cared for Person?
Only make a decision on someone’s behalf if it is decided they do not have capacity to make that particular decision themselves. Consider the preferences of the person living with dementia so you are ready to make best interest decisions.
Whilst the person still has capacity to do so, encourage them to create a document which expresses their wishes and includes the things that are important to them.
Whilst the person still has capacity to arrange their financial affairs, ensure all paperwork and online accounts are accessible.
When making the LPA, the person can choose to indicate important specific instructions that must be followed.
Have conversations with the person and involve family, friends and carers in recording preferences around their care.
Consider what decision they may have made if they were able to make it themselves. Keep in mind their past beliefs and wishes and ensure that their religious, moral and political views are respected.
Always consider their human and civil rights. Decisions should always be the least restrictive. An attorney is not able to make a decision for another person on either voting choice or relationships.
Difficult Decisions
Sometimes it can be difficult to agree on a “Best interest decision”. It is important to have a discussion with everybody involved in the care of the person to gather all the information needed to reach an agreed decision.
If reaching an agreement is still proving difficult, the Office of the Public Guardian can provide advice to attorneys.
It may be necessary to appoint an independent advocate to represent the person if the attorneys feel unable to agree on a particular decision. In some cases, mediation may be helpful to resolve any disputes between attorneys or family members.
In the case of a dispute over a big decision, for example selling a property, it may be necessary to request the Court of Protection to intervene and make the final decision.
If you need further advice and support in navigating the dementia journey, then our Wayfinding team is available to assist you with any matter to do with living with dementia. Get in touch with a member of the team today on 01243 888691, email info@dementiasupport.org.uk or fill in our online contact form.