A dementia diagnosis can be overwhelming, bringing many questions about the future. While it’s natural to feel uncertain, taking steps to plan ahead can offer reassurance and ensure that important decisions are made with care and respect.
A Lasting Power of Attorney (LPA) gives someone with dementia the ability to choose a trusted person to make decisions on their behalf if they can no longer do so themselves. In this guide, we’ll walk through how an LPA works for someone with dementia, when it can be set up, and what happens if one isn’t in place.
Can you make an LPA if you’ve recently been diagnosed with dementia?
Yes, a person who has recently been diagnosed with dementia can still make a Lasting Power of Attorney, as long as they have mental capacity at the time of making it. Mental capacity means they understand what an LPA is, what powers it grants, and the potential consequences of signing it.
If someone is in the early stages of dementia and can still make informed decisions, it’s strongly recommended that they arrange an LPA as soon as possible. This helps avoid complications later when they may no longer be able to give legal consent.
Can someone with dementia sign legal documents in the UK?
Yes, someone with dementia can sign legal documents in the UK, but only if they have the mental capacity to understand the document they are signing. If there is doubt about their ability to make informed decisions, a medical professional may need to assess and confirm their capacity.
How is mental capacity assessed for an LPA?
Mental capacity is assessed based on the ability to understand, retain, and communicate decisions. The Mental Capacity Act 2005 provides guidelines on assessing capacity, ensuring that individuals are not unfairly prevented from making their own decisions.
A medical professional, such as a GP or specialist doctor, can assess whether someone has the capacity to create an LPA. For an LPA to be legally valid, the person making it (the donor) must fully understand:
What an LPA is and what it does
The powers they are giving to their chosen attorney(s)
The potential consequences of signing the document
That the attorney(s) must act in their best interests
Just remember, mental capacity isn’t always fixed - it can come and go. For example, someone with dementia might temporarily lose capacity due to delirium (sudden confusion) or sedative medication. That’s why it’s important to assess their capacity each time a big decision needs to be made.
Can you get Lasting Power of Attorney for someone with dementia?
You cannot apply for an LPA on behalf of someone who already lacks mental capacity. The person (donor) must have the ability to understand and agree to the arrangement when signing the document. If the person lacks capacity, they cannot legally make an LPA, and an alternative arrangement, such as applying for a Deputyship through the Court of Protection, may be needed. This process is more time-consuming and expensive than setting up an LPA while the person still has capacity.
What’s the difference between a deputy and an attorney?
A deputy and an attorney both have the legal authority to make decisions on someone’s behalf, but how they’re appointed and what they can do are quite different. Here’s how they compare:
Factor | LPA | Deputyship |
|---|---|---|
Control | You choose who makes decisions for you. | The court appoints a deputy, not you. |
Cost and process | Quicker and more affordable to set up. | More expensive and time-consuming. Requires annual fees and reports. |
Types of decisions | Covers both health and welfare and property and financial affairs. | Usually limited to financial decisions; health and welfare deputies are rarely appointed. |
Who makes care decisions? | Your attorney makes decisions if you lose capacity (for a Health and Welfare LPA). | If no LPA is in place, healthcare professionals will decide based on your best interests. |
💡When in doubt, a Lasting Power of Attorney solicitor can help work out the best course of action.
How to get an LPA for somebody with dementia
If a person with dementia still has mental capacity, they can set up a Lasting Power of Attorney (LPA) to ensure their chosen representatives can manage their affairs when they are no longer able to do so. The process involves several key steps:
1. Choose attorneys
The person with dementia (known as the donor) must decide who they trust to make decisions on their behalf. These individuals, known as attorneys, could be family members, close friends, or professionals such as solicitors. It’s important to choose people who are reliable, understand the donor’s wishes, and are willing to take on the responsibility. More than one attorney can be appointed, and they can either act jointly (making decisions together) or jointly and severally (allowing each attorney to act independently).
2. Decide on the type of LPA
There are two types of LPA, and the donor can choose to create one or both, depending on their needs:
Health and Welfare LPA: This allows attorneys to make decisions about medical treatment, daily care, and where the donor lives. It can only be used once the donor loses mental capacity.
Property and financial affairs LPA: This enables attorneys to handle financial matters, such as managing bank accounts, paying bills, collecting pensions, and even selling property if necessary. This type of LPA can be used as soon as it is registered, if the donor wishes, or only when they lose capacity.
3. Complete the LPA forms
To officially set up an LPA, the correct forms need to be completed. These are:
LP1F – For Property and Financial Affairs
LP1H – For Health and Welfare
The forms can be downloaded from Gov.UK or completed online. The donor will need to provide details about their chosen attorneys and any preferences or instructions for how they should act.
4. Get the LPA signed and witnessed
To ensure the LPA is legally valid, several signatures are required in a specific order:
The donor must sign first, confirming they understand the LPA and agree to appoint the attorneys.
A certificate provider must sign next. This is someone who confirms that the donor has the mental capacity to make the LPA and is not being pressured into doing so. The certificate provider can be a medical professional, solicitor, or someone who has known the donor for at least two years.
Each attorney must also sign, confirming they accept the role and responsibilities.
All signatures must be witnessed by an independent person (not an attorney or certificate provider).
5. Register the LPA with the Office of the Public Guardian (OPG)
Once the forms are signed, they must be sent to the Office of the Public Guardian (OPG) for registration. This process can take 8 to 10 weeks, as long as there are no errors or objections. The OPG will review the forms, notify relevant people (such as family members) that the LPA is being registered, and ensure everything is legally valid.
Once the LPA is registered, the attorneys can start acting on the donor’s behalf when needed. If it is a Health and Welfare LPA, it will only come into effect when the donor loses capacity.
What could happen if you don’t make an LPA?
If you don’t set up an LPA and later lose the ability to make decisions, no one will have the legal authority to step in for you. This could make things tricky - your loved ones might struggle to pay bills, manage care costs, or make important decisions about your future. Common challenges include:
No automatic decision-making rights: Family members cannot legally manage bank accounts, property, or medical decisions without legal authority.
Applying for Deputyship: Instead of an LPA, family members must apply to the Court of Protection for a Deputyship Order. This is a lengthy and expensive process that can take several months.
Potential disagreements: Without an LPA in place, relatives may have conflicts over decisions regarding finances or care arrangements.
Delays in care and financial management: Without legal authority, it can be difficult to pay bills, access pensions, or make urgent healthcare decisions.
FAQs
Can a person with dementia change their LPA?
If the person still has mental capacity, they can revoke or update their LPA. However, if they have lost capacity, changes cannot be made, and the existing LPA remains in place.
What if an LPA was never made?
If no LPA exists and the person has lost capacity, family members must apply for a Deputyship Order through the Court of Protection to manage their affairs.
Does a dementia diagnosis automatically mean someone lacks capacity?
No. Many people with dementia retain mental capacity, especially in the early stages. Capacity must be assessed on a case-by-case basis.
Can an LPA be used immediately after registration?
Property and Financial Affairs LPA – Can be used as soon as it is registered, unless the donor states otherwise.
Health and Welfare LPA – Can only be used once the donor loses capacity.
Can an LPA be challenged?
Yes, an LPA can be challenged if there are concerns about how attorneys are acting or if there were issues with the donor’s capacity at the time of signing.
Final thoughts
For people with dementia, setting up a Lasting Power of Attorney as early as possible is one of the most important steps to safeguard their future. Taking action early can help ensure financial and medical decisions are handled smoothly, reducing stress for both the individual and their family. If you need help with setting up an LPA, seeking advice from a legal professional can provide reassurance and ensure everything is done correctly.
Additional support
For those seeking guidance on making a Lasting Power of Attorney (LPA) or any other aspect of dementia care, Dementia UK offers specialist support through its free Dementia Helpline. The helpline can be reached at 0800 888 6678 (Monday to Friday, 9am-9pm, and weekends 9am-9pm).
Additional information and resources
Plus, there are several other useful sources of information for those navigating dementia care and legal planning:
Gov.UK - Make, register or end a Lasting Power of Attorney
Disclaimer: This article only provides general information and does not constitute professional advice. For any specific questions, consult a qualified professional.