What is mental capacity?
Having mental capacity means being able to make informed decisions – for example, about our care, welfare and finances. The law says that while you have mental capacity, you will be able to understand the information relevant to each decision, retain that information, use or weigh the information as part of the decision-making process, and communicate your decision (by whatever means).
In the early stages of dementia, a patient may still have the mental capacity required to make most decisions for themselves. Note that just because the decision they have made seems unwise, does not mean they lack the capacity to make that decision. The law is very clear that everyone has the right to make their own life choices, where they have the capacity to do so.
As dementia progresses, they may lose the capacity to make certain decisions – for example, to manage their finances. However, they may still have the capacity to make other decisions (for example, what they would like to wear, who they would like to be friends with or what they would like to eat for dinner).
The symptoms of dementia will get worse over time and currently there is no cure. It is therefore important to get an early diagnosis and take action, while there is still time.
How to get power of attorney for someone with dementia
If the person diagnosed with dementia has not lost mental capacity, they will be able to make a Lasting Power of Attorney. This should be done with a lawyer, who can offer proper advice and attest that the person understands the decision they are making.
There are two types of Lasting Power of Attorney – one for decisions regarding property and finances, and the other for decisions regarding health and welfare. These allow you to specify different people to handle each type of decision – although in practice many people choose the same people for both.
Once the Lasting Powers of Attorney have been drawn up, they will be registered with the Office of the Public Guardian. They cannot be used until they are registered, although they will still be valid once registered even if the person who made them loses mental capacity during the registration process.
Once they have been registered, the property and welfare Lasting Power of Attorney can be used at any time that the person who made it chooses, even if they have not lost mental capacity. The health and welfare Lasting Power of Attorney can only be used once the person who made it has lost mental capacity.
When a person with dementia has lost capacity
If the person diagnosed with dementia has no power of attorney and they have already lost mental capacity, it will not be possible to make one now. Instead, you will need to apply to the Court of Protection for a Deputyship Order. It is advisable to instruct a lawyer to help you with the process, as it is both complicated, expensive and sometimes intrusive.
Obtaining a deputyship order
Similar to the Lasting Power of Attorney, there are two types of Deputyship Order – one for property and finances, and the other for health and welfare. There are several forms that need to be completed, one of which must be filled in by a medical professional involved in the person’s treatment. They will need to specify that their patient has lost mental capacity and cannot make the relevant decisions for themselves.
There are a number of fees to pay which include a £365 application fee and, if the Court requires a hearing (for example, because there is a dispute as to who should be Deputy), a £465 hearing fee. Once accepted as a deputy, there is a £100 new deputy fee and an annual supervision fee. This will be £320 for the first year but may drop to £35 the year after if you’re a property and affairs deputy managing less than £21,000 of assets. It is also necessary to obtain a bond which provides security for the person’s assets.
Fee discounts and exemptions are available on Court fees, for those on a low income – these are based on the person’s income for the property and affairs order, or the Deputy’s income for the health and personal welfare order.
In addition to the Court’s fees, you will need to pay legal fees for any help and advice you have obtained.
Avoiding the need for a deputyship order
Obtaining a deputyship order for someone with dementia is a long-winded process that can be very expensive. It is therefore important to take action quickly if someone with dementia has been recently diagnosed and their symptoms are not severe.
If you would like further advice about obtaining power of attorney for someone with a dementia diagnosis or you believe you may now need a Deputyship Order, please contact our team on 0800 788 0500 or email firstname.lastname@example.org.