Putting an Enduring Power of Attorney (EPA) in place is always recommended. If someone is diagnosed with dementia, an EPA will allow their trusted attorney to manage their financial affairs. However, it is crucial that the EPA is executed while the individual still has the mental capacity to understand what they are signing.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document that gives one or more people the authority to make financial decisions on your behalf, should you ever be unable to do so yourself. If you choose more than one person, you can either require them to act together, taking all decisions jointly, or jointly and severally, in which case they can act individually.
Your attorney will be able to deal with your finances, to include accessing your bank account, paying bills, making investments, purchasing items on your behalf and selling and buying property.
You can choose whoever you want to act as your attorney. It is often advisable to choose someone younger than you, so that there is a good chance they will be able to take on the task if and when the time comes as it can be onerous.
If you want, you can restrict what the attorney can do on your behalf, although it may be easier for them to have power to deal with all of your financial affairs.
If it is felt that you are losing your mental capacity and the EPA needs to be used, then it will need to be registered by the Court, which will generally require written confirmation from a medical professional that you can no longer make your own decisions.
Making an Enduring Power of Attorney if someone has dementia
If someone has been diagnosed with dementia, it may still be possible for them to sign an Enduring Power of Attorney if they have sufficient mental capacity.
They will need to:
· Understand what they are signing and what the effects of signing will be
· Be able to hold the information they are given about the implications of an EPA in their memory long enough to decide whether they wish to sign
· Make their own decision, having considered the situation
· Communicate this decision
It is recommended that you involve a medical professional if you are helping someone who wants to sign an EPA but who has the onset of dementia, so that you have evidence that they were able to satisfy the above points. This will give you evidence in support of your actions, should anyone ever query matters in the future.
What happens when an individual does not have an EPA and has dementia?
If someone has dementia and has not put an EPA in place and they no longer have the understanding to sign one, then their relatives will not have any legal authority to deal with their affairs and issues such as making bill payments for them. It may be necessary to ask the court to appoint a mental health receiver to deal with matters. This is a lengthy and more complicated process and can result in difficulties for the person in question as they face a period without access to their funds.
At Quinn Legal, we offer a package service, which includes a Will, an Enduring Power of Attorney and an Advance Decision. These are the crucial documents that can give you peace of mind for the future and enable your loved ones to help you as needed and benefit from your assets when the time comes. You can find out more about an Advance Decision here and more about Wills here. We have a client platform to help you put these three important documents in place, or please feel free to call us to discuss your needs and to ask any questions you may have.
Patrick is the Head of Wills & Administration at Quinn Legal
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