A Power of Attorney (POA) serves as an important legal arrangement that enables individuals to nominate someone they trust to handle their financial or healthcare matters in the event they become unable to do so themselves. Despite its significance, many people delay arranging one – often believing they have more time than they actually do. When a loved one is diagnosed with dementia or a similar cognitive illness, families are often left wondering whether it is too late to set up a POA.
Encouragingly, an early dementia diagnosis does not automatically mean the individual has lost the legal ability to put a POA in place. Mental capacity is a detailed and context-dependent matter; a medical diagnosis by itself does not equate to legal incapacity. However, once the condition becomes more severe, setting up a POA can become a considerably more complicated legal process.
Can a person with early dementia still establish a POA?
As long as the person retains the mental ability to comprehend what a POA is, its purpose, and who they are appointing, they can still legally authorise one. A dementia diagnosis does not necessarily eliminate the possibility of making such arrangements, provided the person remains capable of understanding the consequences of their choices.
Nonetheless, it is prudent not to postpone. Given that dementia is a degenerative condition, delaying could result in the window of opportunity closing altogether.
Does the type of POA- financial or health – make a difference?
A Power of Attorney may be tailored to cover either financial responsibilities, such as banking, property, and utility payments, or health-related decisions, including medical care and daily living arrangements. Regardless of the type, the individual must demonstrate a sound understanding of what they are agreeing to at the time the document is signed.
Should a solicitor believe the person lacks the required capacity, the POA cannot be legally created.
What assessments or documentation are needed?
To verify that an individual has the mental capacity to grant a POA, a solicitor will undertake an initial evaluation. This usually consists of straightforward questions about the person’s identity, personal circumstances, and their understanding of the POA. The solicitor must also confirm that the decision is being made freely, without external pressure.
If there is any uncertainty surrounding the person’s capacity, a solicitor may ask for a formal assessment from a medical practitioner or specialist. This ensures the validity of the POA and helps avoid complications or legal disputes down the line.
What if dementia has reached an advanced stage?
When the individual’s condition has deteriorated to the point where they are no longer capable of understanding or agreeing to the POA process, it becomes too late to establish one. In these circumstances, family members will need to seek legal authority through the courts.
In England and Wales, this is done by applying for a Deputyship Order from the Court of Protection. In Scotland, a Guardianship Order must be obtained via the Sheriff Court.
How quickly can a POA be set up?
Registering a Power of Attorney typically takes a few weeks, enabling the appointed attorney to begin managing the person’s affairs in a timely manner. By contrast, applying for Deputyship or Guardianship can take several months (or longer!) and involves more intricate legal procedures, including detailed medical and social assessments before judicial approval is granted.
Such delays can prove problematic if urgent financial or healthcare decisions must be made. Putting a POA in place early on can help avoid these difficulties and provide peace of mind for everyone involved.
How can relatives make sure the process is lawful and above board?
When assisting a relative with dementia in creating a POA, it is essential that the procedure is carried out properly and in accordance with the law. Concerns can arise, particularly in families where relationships are strained, regarding whether the individual is acting of their own free will.
To ensure transparency, the solicitor will meet with the individual privately, without family members present, to confirm their understanding and that they are making the decision independently. The solicitor will ask about their family and their reasons for selecting a particular attorney. If the chosen attorney is someone outside the family, further clarification will be sought. Where coercion is suspected, the solicitor may either pause the process or recommend further investigation.
These legal safeguards are designed to protect the individual’s interests and prevent misuse of power or undue influence.
A Power of Attorney is a critical precautionary measure – much like a safety net. One hopes never to rely on it, but having it in place can prevent serious challenges later. The central message is to act without delay. If you or someone close to you has received a dementia diagnosis, it is wise to seek legal guidance as early as possible to ensure suitable arrangements are made.
John Roberts is a Partner and Director at Austin Lafferty. John has been with the firm for over 20 years, with experience in all areas of later life planning, such as POA and wills.