Does A Diagnosis Of Dementia Shut The Door To Legal Services?
Absolutely not. This Dementia Action Week, we look to dispel the myths surrounding dementia and what it means when arranging your own legal affairs.
It’s now estimated there are 944,000 people living with dementia in the UK (Dementia Statistics Hub). One in three people born in the UK will develop dementia this year. By 2025, if the current trend continues the number of people with dementia in the UK is forecast to increase to 1,142,677. In 2051, it will be 2,092,945; an increase of 40% over the next 12 years.
If you aren’t sure what “dementia” is, it’s a term used for a number of conditions resulting from significant and progressive disorders that affect how your brain works. In particular the ability to remember, think and reason. Dementia is not a disease in itself, but a group of symptoms that may accompany a number of diseases that can affect the brain. The most common types of dementia in the UK are Alzheimer’s disease, vascular dementia, Lewy Body dementia, and fronto-temporal lobe dementia.
If you’ve received a dementia diagnosis, our first piece of advice is to tell your legal adviser. Dementia is a progressive condition, so it’s better to deal with it as soon as you can to give you the greatest opportunity to organise your personal affairs.
Mental capacity
Even though you or a loved one may have had a diagnosis of dementia, you, or they, may still have the required mental capacity to make arrangements for estate planning. The tests for mental capacity differ for making a Will and a Lasting Power of Attorney. They are also time and decision specific. They can also fluctuate wildly and a person may have capacity to make a specific decision at one point in time, but not at another. They may be able to make a decision about one specific thing, for example, getting married where the threshold for capacity is relatively low. But they may not have capacity to make a Will. By speaking to your legal adviser, mental capacity can start being assessed and your options can be outlined from the earliest opportunity.
Making a Lasting Power of Attorney
One of the most important decisions you can make is to put in place a Lasting Power of Attorney (LPA). An LPA will outline how your property and financial affairs or your health and welfare will be handled in the future. You can choose people (your attorneys) to make those decisions. You can provide them with guidance and instructions as to what your wishes are and when they should act. Whilst it can feel like you’re handing over control, you’re actually taking control, by deciding who can make those decisions for you and in what circumstances.
If you’re considering whether an LPA is a good idea for a loved one or family member, it is, of course, great that you are looking out for them. Try to ensure that you remain a support for them, rather than taking over, even if it’s unintentional. The legal adviser must take instructions from the person themselves, to ensure that it’s their own wishes that are being acted on, not someone else’s, so please don’t be surprised if the legal adviser asks to see the person alone. Also please don’t be upset if the legal adviser asks for a medical opinion on mental capacity to be obtained on you (or the person whom is giving instructions). This protects everyone’s position and we can advise how to deal with this. It’s often the safest way to proceed, particularly if there are any fractious relationships, and is the most effective way of defeating any challenge which may be made on capacity grounds at a later date.
An LPA is worth considering as it offers peace of mind, no matter what the future may hold.
Future care planning needs
We can also start to look at future care needs with you and how any care might be funded. We can discuss with you where you might like to live and the potential costs of your care preferences. We can also put you in touch with independent financial advisers and planners who can prepare cash flow forecasts. They will review your current assets to help you feel more at ease about what your lifetime care plan might look like. We can also help you by looking at any care contracts to ensure you are happy with the legalities and implications of any legal documentation that you may be required to sign.
In addition to care fee planning, we can also review your inheritance tax position and see what planning opportunities might be available to you. Time is often of the essence in those circumstances and we can help you put arrangements in place but, again, it’s important to speak to your legal adviser as soon as possible – even before any formal diagnosis has been received, to explore and maximise reliefs.
You should also check your Will is up to date, or even exists, and whether it’s as effective as it can be. Instructions are taken and capacity can be assessed at the same meeting to minimise any anxiety you may feel about going through the process. Alternatively, the meetings can be broken down into several shorter sessions, depending on what suits you best.
If your – or your loved one’s – capacity has started to go, please don’t assume that nothing can be done. We can obtain instructions using different methods and will always try our utmost to help and accommodate. As we have said previously, capacity can fluctuate and often by talking to people at another time or at a different point in the day, can sometimes be enough.
Ultimately, if you or the person you’re trying to help lacks mental capacity, there are other options available that can be explored. Whilst we are legal advisers we’re also committed to those with a later life issues and are specialists in this area. We have several legal advisers who are full accredited members of Solicitors for the Elderly and many of our team are Dementia Friends. Dementia won’t be a barrier to us wanting to help you and we’ll do everything we can to ensure that you or your loved ones receive the best, most practical advice. We’re proud to be able to offer you the expert hand with the human touch.
You can find out more about how we can help here.
