Dementia: who will make decisions if you can’t?

This week we mark Dementia Awareness Week, an initiative launched by the Alzheimer’s Society to raise the profile of the condition.

Woman smiling at elderly man and resting her hands on his shoulders Those living with dementia need specialist care and support, as they won’t be able to look after themselves any more. They will also need to have medical, legal and financial decisions made on their behalf.

Which is why it is very important that they specify their wishes in the form of a Lasting Power of Attorney, nominating a person or people who they trust to look after their interests if they are unable to do so themselves.

What is dementia?

People with dementia have problems with their memory, and can also struggle with thinking and problem solving. And it’s a progressive disease, which means it won’t get any better.

Often associated with old age, dementia can, in fact, strike at any time. It’s caused by diseases such as Alzheimer’s, or a series of strokes. So while it’s more common in elderly people, it is by no means exclusively an ‘old age’ condition.

Image and link to Alzheimer's SocietyThe theme of the Dementia Awareness Week this year is to encourage people who are worried about dementia to address their fears directly. It is understandably a scary condition, both for those suffering and those living and caring for them.

Of course, not everyone will get dementia or become unable to continue making their own decisions for the rest of their lives. As with many things in life, we can’t predict the future. But preparing for its possibility before it strikes is much easier than the alternative.

Who makes the decisions for people with dementia if they don’t have an LPA?

In the absence of an LPA, anyone who needs to make decisions for a person who doesn’t have the mental capacity to make their own decisions has to apply to the Court of Protection. You can apply to them for a Deputyship order, which will authorise you to make the decisions on behalf of the person with dementia. This could include all or any aspects of their medical care, their financial affairs or their ongoing care and wellbeing.

If you are the person’s next of kin, you still need to apply. It is not an automatic right, something which many people are under a misconception about.

The Court of Protection will always look at the best interests of the person they are protecting. This can sometimes be in direct conflict with the family’s wishes. For example, it is within the Court’s remit to appoint a local authority as a person’s deputy – local authorities can also apply to the Court.

In one instance, a dementia sufferer’s family wanted to care for him themselves, and he wanted to remain at home with them. However, the family were unable to properly provide for his needs and he was considered ‘At Risk’ by social services. The Court of Protection stepped in and appointed the local authority as his deputy, and they were able to arrange the sale of his house, manage his finances and place him in a home with 24-hour care.

It may sound unfair, even harsh, but the Court is purely looking at the wellbeing of the sufferer.

What to do if you want to apply to become a deputy

At Barker Evans, we offer Court of Protection services and can help you to apply to become a deputy if you think a loved one is unable to make their own decisions and they have no LPA in place.

The Court of Protection:

  • Was set up to assist people with mental incapacity
  • Handles complex cases which haven’t been able to be solved in other ways
  • Deals with issues relating to property, finances and healthcare
  • Appoints deputies to be responsible for a person’s decision making if they are incapacitated
  • Can remove an appointed deputy if they think they are not acting in the person’s best interests (in particular in cases of physical abuse or financial mishandling)

Be prepared

While there are processes in place to assist those suffering from dementia to get the best help and support for them, as I’ve outlined this doesn’t always involve their family or next of kin.

My strong advice is to sort out an LPA well in advance, appointing an attorney to manage your affairs if you become unable to do so. Of course nobody wants to think that they will at some point be mentally incapacitated – but the decisions about your life are so important that you would be wise to consider this possibility and make provision for it.

Dementia Awareness Week is about facing up to dementia and understanding the support, guidance and systems that are out there to assist sufferers.

Let’s all be a little more aware… and prepared.

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*A Lasting Power of Attorney (LPA) should not be confused with an Enduring Power of Attorney (EPA), which has now been phased out.

Rosamund Evans

About Rosamund Evans

I’m the founder and principal solicitor of Barker Evans Private Client Law. When I started my own law practice I wanted to make it easier for my clients to get the help they need at a price they can afford and in a way that makes them feel comfortable and fully supported. You can access a variety of legal advice on my website, plus how-to guides and blogs.