Assisting a Loved One with Dementia – A Legal Safeguarding

Assisting a Loved One with Dementia – A Legal Safeguarding

We all strive to protect our loved ones, and if someone close to us receives a diagnosis of dementia, the urge to care and look after only becomes stronger. Your loved one may need increased care and attention, as well as patience and kindness, but what can you do to protect your loved one’s assets, personal effects and financial situation should they lose mental capacity to dementia?

Managing their finances

There are over 200 different variations of dementia, which can each impact a person’s brain, body and mental capacity differently. However, the majority of dementias will leave the person struggling with their mental capacity in one way or another eventually. They will often struggle to manage their finances in part (they may be able to perfectly tackle online banking, but no longer recognise cash and coins), or as a whole, meaning that they will need someone to assist them.

If your loved one has a Power of Attorney, and they are beginning to struggle with their finances, or their mental capacity in general, this is the time to enact this.

A Lasting Power of Attorney, if registered by the Office of the Public Guardian, can be used immediately to support your loved one with their finances.

An Enduring Power of Attorney will need to be registered with the Office of the Public Guardian if your loved one begins to become mentally incapable. This is the case even if you have been using this document to support your relative for some time.

If your loved one has not made a Power of Attorney, or the document they do have is out of date or otherwise invalid, you will need to make a Deputyship application to the Court of Protection to gain authority to manage their finances via a Deputyship Order.

Without formal authority to do so under the above named documents, you will not be able to manage your family member’s finances for them, even if you have previously acted under a third party arrangement with their bank, or the person has given you personal permission to carry out such tasks, such as attending an ATM for cash withdrawals, previously.

Making arrangements for their estate

Once a person has lost the mental capacity to make or change their Will, known as testamentary capacity, no further new Wills or amendments to existing documents can be made.

However, you can help plan for the future by finding out if your loved one has made a Will, and noting down details of their wishes, if of course they are willing to share this with you. A solicitors’ firm may not have authority to release this kind of information to a third party in general, but an attorney or deputy can have the authority to obtain a copy of a Will if it is going to help them manage their loved one’s finances.

If there is no Will in place, or due to extreme circumstances, like a breakdown in family relationships, the Will that is in place is no longer reflective of the person’s wishes, a Statutory Will can be made via the Court of Protection to detail the wishes of a person if they had the mental capacity to make a Will in the current times. This can be a long-winded or costly process, but can be a valuable option if what a person had previously felt was appropriate within a Will is no longer a sensible option due to family conflict or a change in circumstances.

Other considerations to make

You may find yourself assisting a person whose income is no longer working intelligently for them – for example, they may benefit from gifting of a large income, which would otherwise incur a large tax liability.

As well as Deputyships and Statutory Wills, the Court of Protection can also assist attorneys or deputies make gifts on behalf of an incapacitated person, where this would be in their best interests.

The Court of Protection also has the power to assist a deputy in selling a property that is jointly owned by an incapacitated person and another, whether this person is alive or deceased. They can also give authority for an incapacitated person to be removed as a trustee from a Will Trust.

To discuss how you can help your loved one who is living with dementia, please speak to our Private Client team, based in Uckfield, Hove and Hadlow.

Contact

To plan for the future by making or registering a Power of Attorney, drafting a Will or preparing an Advance Directive, do speak with our Private Client Team.