If you have recently been diagnosed with dementia, it’s essential to make sure that your legal and financial affairs are in order, so that you can hand the responsibility over to a family member or loved one when you no longer have capacity. The earlier you can do this the better – otherwise it may be too late. Make a list of all your assets and liabilities, such as savings accounts and pensions, as well as details of any loans or credit card balances. It’s also important to update your will, or make one, if you don’t currently have one. You may want to make an Advance Decision, also known as an Advance Directive, which specifies the care you would like to receive in future, when you no longer have capacity. Visit http://alzheimersshow.co.uk/making-an-advance-decision/ for more information on making an Advance Decision.
When you list all your assets and liabilities, try to include any supporting documentation and keep it all together in one file, labelled ‘Important documents’. Let the person who cares for you know where you keep the file. That way, they will be able to locate it easily.
Lasting Power of Attorney
Set up a Lasting Power of Attorney (LPA) immediately, while you still have capacity. A diagnosis of dementia won’t stop you from doing this, but a solicitor will need to be satisfied that you understand what you are doing and are clear about your intentions. ‘Just because a person has been diagnosed with dementia it doesn’t mean they can’t prepare a Lasting Power of Attorney, but if they don’t have the requisite capacity to prepare an LPA, then an application will have to be made to the Court of Protection,’ says Sarah Clacker, a senior solicitor with Bolt Burdon Solicitors in London (www.boltburdon.co.uk). This is an expensive and lengthy process so it’s best avoided by acting quickly. If a solicitor is in any doubt about your ability to understand what you are signing, then you might not be able to proceed. ‘It can be really difficult to ascertain whether somebody has got capacity,’ adds Sarah. ‘A lot of the time we have to obtain medical opinions and we might ask GPs to act as a Certificate Provider (the person who confirms that you understand the nature of the Lasting Power of Attorney.) If the person doesn’t have capacity then their carer will have to make an application to the Court of Protection and apply for a deputyship order in order to deal with their finances.’
Most people focus on sorting out their finances, and while this is hugely important, it’s also essential to make provision for your long-term health and wellbeing. There are two types of Power of Attorney – Property & Finance and Health & Welfare. Both are important. ‘A lot of the time people only prepare the financial LPA but in my experience it is valuable to have both types and our advice would be to get both prepared and registered as soon as possible,’ says Sarah.
Property & Finance LPA means that the attorney(s) can make financial decisions on your behalf such as buying or selling property, investing money and paying bills. Health & Welfare LPA means that the attorney(s) you appoint can make decisions about your health and wellbeing, including decisions about your medical care and where you live in future. But they must take your previous wishes about future care into consideration and always act in accordance with your intentions wherever possible. For more information, visit http://alzheimersshow.co.uk/setting-up-power-of-attorney/
If you have left it too late and your carer has to go to the Court of Protection and apply for a deputyship to act on your behalf, in most cases they will only get financial deputyship and not health and welfare.
Choose carefully
Despite recommending that you don’t leave it too long to set up Lasting Power of Attorney, it’s also important to think very carefully about who you appoint as your attorney – i.e. the person acting on your behalf. You need to be completely sure that you can trust them. Are they honest? Are their own finances in good shape? You will need to be 100 per cent convinced that they could manage your finances properly and act in your best interests in an open and honest way. ‘You’ve got to think carefully about who you appoint,’ says Sarah. ‘They’ve got to be people you trust who you can be sure will make the right decisions for you.’ You may think that you should be able to trust family or loved ones, but if you have any doubts, don’t take any chances. Fraud is not uncommon, even among family members. The charity, Action on Elder Abuse, reports that 20 per cent of calls to its helpline concern financial abuse. A report by King’s College in London and the National Centre for Social Research in 2007 revealed that 57,000 people aged 66 and over in the UK had suffered financial abuse by a friend, relative or care worker in the past year. Worryingly, nearly 50 per cent of financial abuse was committed by a grown-up son or daughter. ‘We hear of cases all the time where funds have been misappropriated and the attorney is not acting in the donor’s best interests,’ says Sarah. ‘The problem is, who is going to find out if they are the only attorney and nobody is really looking at what they are doing?’
One way to minimise risk is to appoint more than one attorney. ‘I would always advise on the appointment of at least two attorneys or alternatively, one attorney and a replacement attorney,’ says Sarah.
Different methods
It’s also worth noting that there are different ways appointing your attorneys when setting up a Lasting Power of Attorney. ‘The first is Jointly – where the attorneys have to make decisions together and have to all sign paperwork,’ says Sarah. ‘The second is Jointly & Severally, where one or more person(s) can act on behalf of the other attorneys. Most people choose the latter option simply because of ease; people are living all over the world now and it’s easier. This means that one attorney can sign the paperwork and make decisions without the other attorneys present. The third option is Jointly in respect of some matters and Jointly & Severally in respect of other matters. That’s just a mixture of the two but you have to be very specific as to what matters are going to be joint and what matters are going to be Joint & Several.’
Once you have the Lasting Power of Attorney in place, if you sense that something is not right, then you can still protect yourself. ‘Whilst you have still got capacity you can revoke the Power of Attorney at any time,’ says Sarah. ‘Even after it’s been registered with the court it can be revoked if you’ve still got capacity.’
If you are a carer and have concerns about someone abusing their status as an attorney, then you can contact the Office of the Public Guardian on 0300 456 0300 or by email at opg.safeguardingunit@publicguardian.gsi.gov.uk or write to:
Office of the Public Guardian
PO Box 16185, Birmingham B2 2WH
For more information on setting up a Lasting Power of Attorney, visit https://www.gov.uk/power-of-attorneyTips for protecting yourselfIf you still have capacity and you are concerned that an attorney has not been acting in your best interests, there are things you can do:- Speak to the bank straight away if you suspect theft or fraud
- Cancel all debit cards immediately and ask the bank for an up to date statement
- Open your own post if possible, so that you can keep an eye on things
- Never give the person your PIN number or sign blank cheques
- Seek advice from a solicitor for further advice about setting up a Lasting Power of Attorney, or if you are concerned about one that already exists
- If fraud or theft has occurred, then report the matter to the police and obtain a crime reference number for the bank
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