Protecting parent’s legal and financial situation

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If you’re worried about your parents losing their faculties and their ability to make decisions, particularly about money, then some forward planning might allay your fears – and theirs.   There are some useful things you can do to give you or someone else they trust the power to make decisions on their behalf if and when the time comes.

Legal Concerns

There are two types of Power of Attorney – Ordinary and Lasting.   The former enables your parent to give temporary powers over some finances, for example, during a stint in hospital. A Lasting Power of Attorney (LPA) goes further in that it continues to be valid if your parent loses their mental capacity and is no longer able to make their own decisions.  It is a good way for your parents to give someone they trust the legal authority to make decisions when they are no longer able to do so themselves.   There are two types of LPA:

Property and Financial Affairs LPA to cover decisions including:  selling a home, paying the mortgage, investing money paying bills and arranging repairs to the property.

Personal Welfare LPA covers healthcare and personal welfare and covers decisions including:  where your parents should live, their medical care, what they should eat, who they should have contact with and what kind of social activities they should take part in.

An LPA is only valid if your parents have the mental capacity to set it up and haven’t been put under any pressure to create it.  The LPA must be signed by a certificate provider, someone they know such as a doctor, social worker or solicitor and it can only be used once it is registered with the Office of the Public Guardian.

Setting up an LPA

Take advice when setting up an LPA as there are some boxes that should be ticked for particular situations;  for example should your parent become very forgetful and appear to be cashing cheques or spending money erratically – but they do not have a diagnosis of Dementia – then they will still be deemed able to make their own decisions by the banks.

The Court of Protection

Mental capacity is a tricky subject.  It is a decision made by the GP or other health professional.   If someone is deemed mentally incapable of making a particular decision at a particular time, and they haven’t made an LPA, and the decision isn’t one that can be made on an informal basis, the matter can be referred to the Court of Protection. The court may either choose to make the decision itself on the person’s behalf, or choose someone else, known as a “deputy”, to make the decision for them.

Where the court appoints a deputy to manage someone’s financial and property affairs on an ongoing basis, the deputy usually has to keep accounts, enter into a security bond, and report to the Office of the Public Guardian. The Court of Protection charges an application fee, and the Office of the Public Guardian charges a yearly fee to cover the cost of supervising the deputy’s work.

An Advance Decision or Living Will

An advance decision (also known as an Advance Directive or Living Will) is a legal way for someone to decide ahead of time what life-sustaining/ life-saving medical treatment they would not want in the future.

Someone wishing to make an Advance Directive needs to write it down, sign it and have it witnessed. It is legally binding as long as it complies with the Mental Capacity Act, in other words, as long as you have the mental capacity to write and sign the Advance Directive in the full knowledge of its implications.

The document must explain clearly what treatments are to be refused and under what circumstances. For example, if you want to refuse treatment that might result in death, then this needs to be stated clearly.  If the Advance Directive is binding it takes the place of decisions made in the best interests of the patient by other people, such as doctors or relatives.

Funding Dementia Care

Dementia is currently treated no differently with regards to potential for funding for care and support.  So, you will have to get an assessment from the local authority to clarify what funding might be available.  However, if you can prove that there is a primary health need then you may qualify for NHS Continuing Care – which will fund all the care either at home or in a care home.  This is really worth checking out, but it’s not as straightforward as having a diagnosis of Dementia or Alzheimer’s.