Can a person with Dementia make an LPA?
Driving in to work this morning I was listening to a sad story on BBC Radio 5 Live. It was discovered that a pensioner from Leeds who is suffering from Alzheimer’s was paying £110 each month to Sky, as well as Gas and Electricity Bills of £60 each per month.
His niece, Rachel Holdsworth, discovered this shocking fact when helping her uncle Rodney with his bank account. Thankfully, after tweeting Sky, Rachel was able to reduce Rodney’s bills to £55, and is investigating the utility bills.
This is a common situation faced by that army of family carers looking after elderly relatives who may not have full mental capacity. Often when trying to sort these issues out, the challenge soon becomes a Data Protection one, with the carer unable to access their loved ones’ accounts. Additionally, the customer may be unable to remember their security information and so aren’t able to make changes to their own accounts.
The final issue is that those suffering from these kind of dreadful diseases become increasingly unable to take advantage of the best deals on the market. My own experience shows that they are often on legacy deals, which are often on less favourable terms than they could receive.
There is an OFCOM rule which states that third party access to online accounts, but quite how often this is utilised, or how easy to implement, nobody seems really sure. Frankly, something needs to be done to protect our most vulnerable in society. Dementia is a growing epidemic, that shows no signs of disappearing fast.
If an LPA was in place from the outset, of course the nominated Attorneys would be able to affect change. They would be in control of not only online utility and satellite TV bills, but also the bank accounts that bills are often taken from by Direct Debit. An LPA, or Lasting Power of Attorney is one of the most useful tools in the Estate Planning armoury. Unfortunately it is often too late to do anything by the time real life issues arise.
I’ve had two enquiries in the last couple of weeks that directly relate to this situation. In the first case, Health & Welfare, and Property and Financial Affairs LPA’s are now in the process of being registered with the Office of the Public Guardian, the UK government agency that deals with protecting citizens who lack mental capacity. In the second instance, an appointment has been made, and I’m confident at this stage that we will be able to help.
The key issue is that an LPA can only be put in place at a time when the person in question (the donor) is of sufficient mental capacity to understand the powers they are granting under the terms of the LPA. Now clearly as time progresses, degenerative diseases like Alzheimer’s take away this capacity. Initially though it is more than likely that enough understanding of the situation exists, and Attorneyship can be arranged.
Without getting too technical, there is something called the ‘Golden Rule’ arising from the Mental Capacity Act 2005 which determines capability to make such a decision. The ‘Certificate Provider’ which is often the person completing the LPA forms (we act as Certificate Provider) has to effectively declare to the best of their ability that the donor has the required level of understanding to make the decision.
Sometimes that will be assessed on a simple face to face meeting. In early stage dementia this is often easy to do. Later on, this may require commissioning a Mental Capacity Assessment by an external professional. In all cases it is our company policy to ‘notify’ the donor’s GP officially using the OPG forms.
So the reality of the situation is that if your loved one is showing signs of confusion, or has been recently diagnosed with dementia, it is still possible that they will be able to grant you or another carer legal attorneyship. The key is to get this done early. Don’t delay, or you could end up fighting a losing battle. Ultimately your loved one is the person who loses out, so act early.