LEGAL & FINANCE
BEING PREPARED
Sue Preece, an Associate at Yorkshire-based Chadwick Lawrence LLP, provides practical insights for care homes on the legal complexities of dementia care, including mental capacity, lasting power of attorney and Court of Protection.
When an individual has been diagnosed with dementia it is important to consider at the outset whether there is a power of
attorney in place.
There are two main types of power of attorney that an individual may have:
Lasting Power of Attorney (LPA): This document allows an individual to appoint trusted persons to make decisions about their finances, their health and welfare, or both, should they become unable to do so themselves.
Enduring Power of Attorney (EPA): Prior to October 2007 it was possible to create an EPA to appoint a trusted individual to make decisions about financial matters only. It is no longer possible to make an EPA, but EPAs made before October 2007 are still valid and can be used. An Enduring Power of Attorney would need to be registered before use.
Care providers are oſten the first to notice changes in residents' needs and therefore play a crucial role in helping
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families understand the purpose and scope of various legal documents, ensuring all aspects of their loved one’s care are addressed. This includes helping families take appropriate steps, whether through a registered LPA or by applying to the Court of Protection, and ensuring they are informed about the necessary processes.
If an individual was to lose capacity to make their own decisions, for example, if they develop dementia, without a valid power of attorney in place, they would fall under the jurisdiction of the Court of Protection. In such cases, it is important to consider whether the individual requires a Deputy to be appointed by the Court to assist with decisions about their finances, their health and welfare or both. The proposed Deputy may be a family member or a professional, such as a solicitor, or the Local Authority.
A Deputy is responsible for ensuring that the financial security of the person who lacks capacity is maintained, whilst also making sure that their funds are used to care for them and provide for their needs. The Court has robust systems in place to ensure that any Deputies appointed are suitable to
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