Dementia’s dirty secrets #3: Lasting Power of Attorney

James Ashwell reveals why many family carers find themselves having to act illegally in order to sort out the financial affairs of a loved one with dementia

I’ve recently been researching issues around Lasting Power of Attorney and whilst talking to people and visiting online forums I’ve come across many stories that show how confusing and inaccessible the law can seem to families caring for loved ones with dementia.

Here’s two that caught my eye:

Andrew was relieved he’d managed to sort out his father’s financial affairs.

‘Dad had lived with dementia for eight years and was going downhill fast, so I downloaded Lasting Power of Attorney documents from the internet and filled them in. My GP saw how stressed I was and agreed to sign as the certificate provider, though he had never met Dad before. Thankfully, the whole process was relatively straight forward and I didn’t have to involve a solicitor.’

Mary had lived with dementia for five years when concerns about her safety led to her being detained in hospital, under Section 2 of the Mental Health Act, where her family were advised to draw up a Lasting Power of Attorney, which they duly did.

‘It was touch and go whether she would pass the mental capacity test,’ her daughter recalled. ‘Luckily a nice young girl from the solicitor’s office came in to do it and was very sympathetic when I explained how much we needed Mum to pass this test. Fortunately she did pass – but if she’d had it the day before, or the day after it might have been a different story.’

I hear scenarios like this all the time; loving families struggling to do the right thing at times of crisis, without any idea that they may be skirting along the edges of legality. But the law regarding Lasting Power of Attorney is complex and contains many pitfalls and little support. Those who try doing it themselves by downloading documents from the Government website can quickly run into difficulty. Accessible advice is difficult to find unless you have the financial means to pay for a solicitor.

The pitfalls of LPAs

The first pitfall regards mental capacity. The Mental Capacity Act 2005 defines it clearly but assumes a certain amount of knowledge that many ‘ordinary’ people simply don’t have. Besides, the mental capacity of a person with dementia can vary from week to week – or even from hour to hour – so any test needs to be full and frank, and carried out by a person without bias and with expertise.  Both cases above fall short of this, though you could argue that no harm was done – both families had the best interests of their loved one at heart and so, perhaps, did the professionals who assisted them.

Even if families do contact a solicitor, my research suggests they don’t always understand the law themselves and can give grossly misleading advice. For example, I’ve heard of cases where families have been refused an LPA simply because their loved one has been diagnosed with dementia.

Sally described her experience of this in an online forum: ‘I tried to sort out an LPA the same day my mother was diagnosed, but the solicitor I spoke to on the phone said it was already too late, even though I tried to explain that she was still quite capable of making decisions.’

The advice Sally was given was plainly rubbish and highlights how important it is for those in the legal profession to have some understanding of dementia and what a diagnosis means.

The next pitfall is actually registering the LPA (the process which makes it official). Many families who do manage to take out an LPA when their loved one is first diagnosed, don’t bother registering it with the Court of Protection immediately, reasoning that since they don’t need to use it yet, they have ‘plenty of time’ to send it off and make it official and pay the £110 cost. This is an understandable but high risk strategy because if the documents contain any mistakes and get sent back for amendments it’s usually too late to do anything about it.

Difficult emotions are also at play here. After all, taking over someone’s financial affairs is a massive step that nobody wants to take unless it’s absolutely necessary. No wonder then that denial and fear can cause many to keep putting it off.

I was guilty of this myself. When we decided, as a family, that it was time to register Mum’s LPA it took eight weeks for the process to be completed, which is a long time when your loved one is very confused and you’re trying to deal with daily financial issues without any legal authority. On one occasion, my friend had to impersonate Mum on the phone to a utility company because Mum couldn’t do it herself and we were still waiting for the LPA to be registered. I know many other families are forced to do exactly the same.

The next challenge comes when families try to use their LPA and find themselves faced with a barrage of institutional ignorance causing mistakes, misunderstandings and untold frustration and misery. John’s experience, which he describes on a charity forum, is typical. ‘The British Gas rep I spoke to actually said, “Well, when your Mum is better she can settle her account then.” After that one I gave up calling them.’

The final pitfall is simply doing nothing. Families who don’t act quickly enough to secure an LPA fare worst of all. They must travel a far lengthier and more legally complex route to obtain what’s known as deputyship via the Court of Protection. It’s a process that is not only daunting and fraught with difficulty, it’s also hugely expensive – it can cost ten times the amount of an LPA.

There’s no denying that people with dementia are at risk of financial abuse if an attorney doesn’t have scrupulous motives. I read recently about a lady who had £45,000 stolen by a friend of the family who had been put in charge of her finances. He was rightly jailed, but it’s easy to see how vulnerable adults can be dangerously exploited.

What’s needed next?

In conclusion, what’s needed is clearer, cheaper advice about LPAs that doesn’t necessitate the use of a solicitor so that more people take them out before it’s too late. (Unforgettable offers a free LPA) Guidance should include online videos and simple explanations of the steps involved and why each is important. The process of testing mental capacity also needs to be clearer. I’ve studied this law considerably myself but I’m still not 100 per cent certain I understand it.

Institutional understanding of dementia also needs to improve as a matter of urgency. Until it does, families need to complain more. Complaints to the Financial Ombudsman about Power of Attorney are rising steadily – currently averaging around 30 to 40 per month but maybe there still aren’t enough to make the big financial institutions really sit up and listen. When families are treated badly by banks, utility companies and any professional who ought to know better, they need to speak out, so their problems can be seen and the processes challenged.

That’s why I’m writing this piece, because until we have honest debate, and the needs of people with dementia are sufficiently understood, I fear the legal issues around LPAs will remain just another one of dementia’s dirty secrets.