Legal Advice for Carers

Margaret Seed, Solicitor, Potter Rees Solicitors, Manchester

The legal and financial aspects of caring for someone with dementia can be very complicated.  Unfamiliar terms, like ‘enduring power of attorney’ and ‘receivership’ can appear daunting, and it is tempting to put off the paperwork. However, a basic understanding of the issues involved can be extremely valuable.  Taking early action, when the initial diagnosis is made, can save an awful lot of money and hassle later on. 

Your options
There are several levels at which one can become involved in someone else’s legal and financial affairs:

Appointee for Benefits Purposes

This is a quick, cheap, and easy way to get access to benefits.  Benefits are paid to the individual client, rather than their carer.  This procedure allows the benefit to be paid to the carer (the ‘appointee’) and can be useful when caring for someone who has difficulty managing their financial affairs.

What do I need to do?
The procedure simply involves filling in a form and sending it to the relevant benefits office.  You (as ‘appointee’) and the client will then be interviewed by someone from the Benefits office.

Enduring Power of Attorney

An enduring Power of Attorney is a document that enables a person to become responsible for someone else’s financial affairs.

In this case, you as the carer would act as the ‘attorney’, and the person for whom you are caring is termed the ‘donor’.

One of the most important points to stress is that the donor MUST have mental capacity at the time the Enduring Power of Attorney is made (i.e. the donor must understand the legal contract they are entering into).  The judgement of mental capacity can be a tricky issue in dementia, so it can be useful to obtain the advice and support of the consultant doctor in this situation.

If the donor does not have mental capacity, there is unfortunately no alternative to the Court of Protection, which will be discussed later. 

Who should act as attorney?
It is important that the donor has complete trust in the attorney.  In many cases, this is straightforward, and the main carer may be the natural choice.  However, if there is co-ownership of a house between the main carer and the patient, it is important not to appoint the carer as Attorney, as the co-owner cannot sign property documents on behalf of two people.  A way around this is to put the house in the main carer’s name only before the Enduring Power of Attorney is made.

Can several people be appointed?
Yes.  It is possible to appoint more than one person as Attorney.  The attorneys can then act jointly (i.e. both signatures required on a cheque), or severally (i.e. either signature as valid).  In such cases, it is important that people get on well, and easier if they live close by.

Is it possible to appoint an objective Attorney?
Yes.  If there are problems in appointing a family member or close friend as attorney, the donor can choose to appoint a solicitor to be responsible for their financial affairs.  This is obviously more expensive, but can be useful in avoiding family conflict.

Limitations
Although the Enduring Power of Attorney is made when the donor has mental capacity, it continues to have effect even once this capacity is lost.  Since the judgement of mental capacity can sometimes be complicated, the donor might want to place limitations on it.  For example, it could be stated that the Enduring Power of Attorney could only be used following written confirmation from a doctor, thereby giving the donor control over their affairs for as long as possible.

What do I have to do?
There are two procedures for obtaining Enduring Power of Attorney. Registration is used when the Donor still retains their mental capacity. Once the Donor has lost mental capacity, carers must go through the Receivership procedure.

Registration
If a Donor starts to have difficulty managing their financial affairs, then the Donor is personally required to register the Enduring Power of Attorney. This can be easily done by filling in a short form, available from the Public Guardianship Office. There is a fee of £220.

The form can be obtained online (www.guardianship.gov.uk) or by post:

Public Guardianship Office
Archway Tower
2 Junction Road
London N19 5SZ

The Enduring Power of Attorney can then be used once it has been registered.

Receivership
If a person has lost mental capacity and is therefore unable to register the Enduring Power of Attorney themselves, then the only way for their carer / family to take charge of their financial affairs is to be appointed as Receiver by the Court of Protection. Unfortunately, this is a lengthy and expensive procedure.

The Receiver must obtain a medical certificate from the sufferer’s GP or consultant and must complete a detailed form, giving information about the sufferer’s and their own financial backgrounds. This is so that the Court can establish that there is no conflict of interest between the Receiver and the sufferer. For information about Receivership, carers can contact the Public Guardianship Office at the above address.

Who makes the decision about mental capacity?
Solicitors regard mental capacity to be a medical question.  If there is any doubt about the person’s understanding of the meaning and effect of the document, it is important to get medical advice and a certificate from one of the doctors involved in the person’s care.  There may be a fee for this service, with average costs between £50-100.

Can I get legal aid?
Unfortunately, there is no legal aid available for Power of Attorney.

What happens if the attorney becomes ill?
It is possible to have two separate powers of attorney.  A replacement attorney may be something to think about.

What if the person won’t sign?
It is common for people with frontotemporal dementia and semantic dementia to be quite stubborn and rigid in their thinking.  They may understand the purpose of the document yet still refuse to sign, even though it is in their best interest to do so.  Some people have found it helpful to introduce power of attorney as a shared procedure, with each member of the family signing their own form, so that everyone is in the same situation.  If the person is worried that they may be taken advantage of, it may also be of value to highlight the fact that they can place whatever limitations they like on the document.  For example, that it cannot be used until a written medical report from a doctor states that mental capacity is lost; or that the power of attorney cannot be used to sell the person’s house.

What can I do to maintain the person’s autonomy?
Registering the power of attorney does not halt bank accounts.  When it is felt that the person can no longer deal with their finances, that is the point at which the power of attorney can be sent to the individual bank so that it can be used.  It is possible to set up a small account from which the person could withdraw a limited amount of cash, in order to retain a level of independence.

Can power of attorney be cancelled?
Prior to registration, the Donor can cancel the power of attorney.  This is not possible after registration.

Mental Capacity Act 2005

A new Mental Capacity act will make considerable changes to the law, but will only come into force in 2007.  Enduring Powers of Attorney will remain valid after the act comes into force.  The act concerns peoples’ abilities to make their own decisions about healthcare and finance.

The act will include a legal definition of ‘mental capacity’, which will be made more specific than is currently the case.  There will also be a requirement to act in the best interests of an incapable person, and the concept of ‘best interests’ will be defined.

There is also the introduction of ‘lasting powers of attorney’, which can cover aspects of personal care as well as property.  The lasting power of attorney will require a certificate by a doctor confirming that the Donor has mental capacity when it was made.  Lasting powers must be registered to be effective.  The Donor will state the person s/he wishes to be notified of the application for registration when the lasting power of attorney is made.

It will be possible to nominate successive Appointees (e.g. ‘A should be appointee, but if A dies, the responsibility will fall to B’).

Legal restrictions on gifts will be similar to those under current rule.

A new Court of Protection will be introduced, with wider powers to include decisions about a person’s personal welfare and healthcare.  The court may appoint a deputy with similar powers to a Receiver to act on a person’s behalf, but this will not be a long term appointment.