LIVING WITH ALZHEIMER’S DISEASE: LEGAL ISSUES
There are many legal matters that are important, some of which crop up unexpectedly, such as the appropriateness of continuing to drive a car. This chapter, however, is concerned principally with the power of attorney regulations and the working of the Court of Protection.
It is surprising how many people fail to consider the need for a person with dementia to have a will drawn up. Before allowing people with dementia to make a will it has to be established that they are of testamentary capacity – that they understand what they are doing, are aware of the nature and extent of their belongings, and know the names and relationship of the people who will be the beneficiaries in the will. If there is any doubt about this, it may be necessary for them to undergo a full psychological assessment.
A full psychological assessment may also be necessary before a person with dementia may sign a Power of Attorney which gives a third party authority to manage the demented person’s affairs. This power can be taken out in blanket form, to cover all financial and other important transactions, or may be restricted to specific tasks such as paying regular bills like the gas, electricity, and rates. Inherent in this arrangement is the understanding that the person granting power of attorney to a third party is of sufficiently sound mind to be able to revoke it at any time, and also to be able to control his or her attorney should it be necessary. Anybody who is already significantly intellectually impaired is quite clearly not in a position to protect his or her own interests and under these circumstances it is illegal to enter into such an arrangement.
Similarly, when power of attorney has been granted to a third party by an individual, it ceases to be valid the moment the person on whose behalf it is being exercised becomes unable to manage his or her own affairs through intellectual incapacity. In other words, power of attorney can only remain in force for as long as the person concerned is of sound mind. It is therefore not an appropriate legal instrument to use when a person is already clearly demented. Under these circumstances, it is usually necessary to apply to the Court of Protection.
As many people who grant power of attorney to a relative or other person would have wished their affairs to continue to be administered by their attorney should they become mentally incapacitated, an Act of Parliament came into effect in 1986 allowing a person to grant what is known as enduring power of attorney which continues to be valid whatever the mental ability of the person concerned, but must, however, be drawn up at a time when that person is of sound mind. Such an arrangement will often obviate the need for the family of a person with dementia to apply to the Court of Protection.
In many cases therefore it makes sense, before the dementing process is advanced significantly, to establish whether or not the person concerned is sufficiently sound mentally, to enable him or her to arrange enduring power of attorney if the relative or friend is prepared to take on this task. It may save a lot of difficulty later on as the disease progresses, should there be important legal or financial issues that require resolving. The enduring power of attorney will need registering with the Court of Protection when the subject becomes mentally incapable. Your solicitor will advise you about this.
When mental impairment has set in, in the absence of enduring power of attorney it will often be necessary to apply to the Court of Protection on behalf of the person concerned so that the Court can appoint a receiver to administer his or her property and affairs. This is usually the next of kin, but need not necessarily be so. There are two advantages to this arrangement. Since the receiver is administering the estate of the person concerned under the direction of the Court, it is unlikely that the receiver will use that person’s assets inappropriately. On the other hand the management of a demented person’s financial affairs can sometimes cause family dissent and even accusations of impropriety; if all the financial affairs have been scrutinized by the Court, it is very difficult for a third party to make such accusations.
A near relative, intending to make an application for receivership, may approach the Court through a solicitor. Certain forms have to be completed, some by a doctor, but the solicitor will usually arrange this. As with all legal processes, fees are often involved and certainly the solicitor will require payment for his or her part in the application. The Court may also make some charges, but if requested they will be happy to explain these. They produce a series of leaflets as well as a brochure detailing the duties of receivership.
When the affairs of a person with dementia are simple and the size of the estate negligible — where restricted, for instance, to the collection of a pension and payment of bills out of it — there is often no need to apply to the Court of Protection. The pension authorities, the Citizens Advice Bureau, or a well-informed social worker will be able to provide appropriate advice.
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