A solicitor can give you advice on how to protect the assets of the person you care for. They can advise you how to protect the wishes of someone who is losing their mental capacity, including deputyship applications to the Court of Protection. In addition, a solicitor can advise you on lots of practical matters, such as managing a person’s assets, bank accounts and pension when they enter residential care or managing their estate after they have died.
The Law Society is the professional body for all solicitors; they can help you find a local firm, answer common legal questions, offer advice on what to expect when visiting a solicitor and guidance on paying for legal services.
Financial and legal affairs
If a person has dementia, it is important that they organise their financial and legal affairs while they are still able to do so. This ensures that in the future, their affairs will be set up in a way that they have chosen. The person may want a friend or family member to help them with this.
Make sure that all important papers are in order and that you know where to find them. These papers might include bank and building society statements, records of mortgage or rent, insurance policies, a will, tax and pension details and bills or guarantees.
If the person with dementia has financial assets, such as property or savings, they can set up a trust. This ensures that the assets are managed in a way that the person chooses, both now and in the future. There are a number of different kinds of trusts and ways of arranging them.
If a person in the early stages of dementia wants to do this, they should consult a solicitor while they are still able to convey their wishes clearly. It is important that the trust is set up well before the person needs care in a care home. This is because the local authority needs to be sure that the person with dementia has not set up a trust to deliberately deprive themselves of assets that could contribute towards the cost of their care.
Everyone should make a Will. A Will ensures that when a person dies, their money and possessions go to people of their choosing. People with dementia who wish to make or change their Will should seek legal advice from a solicitor as soon as possible.
People with dementia may still have 'testamentary capacity' − in other words, the legal capacity to make or change a Will. The solicitor will make a decision about this, often after taking medical advice.
People who no longer have testamentary capacity because of their dementia cannot make or change a Will, and no one can do so on their behalf, except for the Court of Protection, which in certain circumstances can make a statutory will. A solicitor can explain this further, and the Court of Protection can send out information on statutory Wills.
A partner, relative or close friend of the person with dementia may also want to make or change their Will. They may wish to leave some or all of their estate to people other than the person with dementia − for example, their children.
If a person wishes to leave some or all of their estate to a person with dementia, they should consider setting up a trust to ensure that the assets are used in the best interests of the person with dementia. They should also check what effect a bequest will have on any state benefits that the person receives.
Mental Capacity Act 2005
The Mental Capacity Act 2005 made provision for people to choose someone to manage not only their finances and property should they become incapable, but also to make health and welfare decisions on their behalf. They will be able to do this through a lasting power of attorney for personal welfare. LPA’s replaced enduring power of attorneys (EPA’s) in October 2007, when the Mental Capacity Act came into force, although EPA’s made before this time are still valid.
The person with dementia may eventually become unable to manage their income from benefits. Someone else may then need to administer this income in the person's best interests, to ensure that all benefits are claimed and essentials paid for. This can be arranged through an 'appointeeship'.
The person who is prepared to act on behalf of the person with dementia should contact their local Department for Work and Pensions office. They should explain that the person with dementia is no longer able to manage their affairs and that they wish to become their appointee. Once they have completed the relevant form, a representative from the Department for Work and Pensions may visit the person with dementia, or ask for medical or other evidence, to confirm that they are no longer able to act on their own behalf. The representative should also check that the prospective appointee is suitable and understands their responsibilities.
Wherever possible, the appointee should be a close relative who either lives with the person with dementia or visits them frequently. In certain circumstances, the appointee might be a friend, neighbour, or caring professional.
- should report any change in the person's circumstances that may affect benefit entitlement
- may sign on behalf of the person with dementia, if they are a non-tax payer, to enable bank and building society interest to be paid without deducting income tax
- can only deal with the person's income from benefits.
An appointee can resign if they feel that they are no longer able to carry out the task. The Department for Work and Pensions (DWP) can also revoke the appointeeship if it has evidence that the appointee is not acting in the person's best interests. If someone starts to act on behalf of the person with dementia under a registered lasting power of attorney or enduring power of attorney, or is made a deputy by the Court of Protection, this person usually takes over from the appointee in dealing with benefits as the DWP says there must only be one appointed person acting for all benefits administered by the DWP. If the deputy and the appointee want to work side by side then this must be agreed by the Court of Protection first and the benefits must be dealt with by the appointee only.