Legal Considerations When Someone Has Dementia

Receiving a diagnosis of dementia for a loved one can be an incredibly challenging time, filled with emotional turmoil and practical concerns. Amidst the immediate worries about their health and well-being, it’s crucial to also consider the legal aspects that come with this condition. Understanding these considerations early can help protect your loved one’s interests, ensure their wishes are respected, and alleviate potential stress for the whole family in the future.

This guide aims to provide a clear, comprehensive overview of the key legal considerations when someone has dementia in the UK, focusing on practical steps families can take. We’ll explore topics such as mental capacity, Lasting Power of Attorney, and other important legal documents, all whilst signposting to the professionals who can offer specialised advice and support.

At the heart of many legal decisions for someone with dementia is the concept of mental capacity. In the UK, the Mental Capacity Act 2005 provides a legal framework for assessing capacity and making decisions on behalf of individuals who lack it. It’s a fundamental principle that everyone is assumed to have capacity unless proven otherwise.

Mental capacity refers to a person's ability to make their own decisions. According to the Mental Capacity Act 2005, a person lacks capacity in relation to a matter if, at the material time, they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

If there are concerns about a person's capacity, a formal assessment may be needed. This is usually carried out by a medical professional, such as a doctor, or other trained professionals like social workers or psychologists. The assessment follows a two-stage test:

The aim is always to support the person to make their own decisions where possible, using all practical help and adjustments. Only when all efforts to support decision-making have failed should a person be deemed to lack capacity for a specific decision.

One of the most important legal documents for someone with dementia is a Lasting Power of Attorney (LPA). An LPA is a legal document that allows a person (the 'donor') to appoint one or more people (their 'attorneys') to make decisions on their behalf if they lose mental capacity at some point in the future. It can also be used if they still have capacity but want help with managing their affairs.

There are two main types of LPA, and it's generally advisable to set up both:

Attorneys must be 18 or over and can be family members, friends, or a professional (like a solicitor). It’s crucial to choose someone trustworthy who understands your loved one’s wishes and will act in their best interests. You can appoint more than one attorney and specify how they should make decisions (e.g., jointly, or jointly and severally).

If a person has already lost mental capacity and an LPA was not put in place, then family members or other interested parties may need to apply to the Court of Protection to become a 'Deputy'. A Deputy is appointed by the Court to make ongoing decisions for someone who lacks mental capacity.

There are two types of Deputyship:

The Deputyship application process is more complex, time-consuming, and expensive than setting up an LPA. It involves submitting detailed forms, providing medical evidence of incapacity, and paying court fees. The Court of Protection supervises Deputies closely, requiring annual reports on their decision-making.

A Will is a crucial document that outlines how a person wishes their assets to be distributed after their death. Just like an LPA, a Will must be made by someone who has the mental capacity to understand its contents and implications.

If there is no Will, or if it's invalid, the person’s estate will be distributed according to the rules of intestacy, which may not align with their wishes. This is another strong reason to encourage people to make a Will whilst they have capacity.

An Advance Decision to Refuse Treatment (often called a 'Living Will') allows a person to formally refuse specific medical treatments in the future, should they lose capacity to make or communicate those decisions themselves. This can be important for individuals with dementia who may wish to refuse certain life-sustaining treatments.

For an Advance Decision to be legally binding, it must meet specific criteria:

If a Health and Welfare LPA is in place, the attorneys will make decisions about treatment, unless the Advance Decision is more recent and covers the specific treatment in question. It’s crucial to discuss these sensitive matters with your loved one and their medical team.

A dementia diagnosis can often lead to increased care needs and associated costs. Several benefits and financial support options are available in the UK, and understanding how to access them is vital:

Navigating the benefits system can be complex. If your loved one has an LPA for property and financial affairs, their attorneys can manage these applications. If not, and they lack capacity, a Deputy will need to be appointed.

Unfortunately, people with dementia can be vulnerable to abuse, neglect, or financial exploitation. Safeguarding is about protecting their right to live in safety, free from abuse and neglect. All local authorities have a duty to investigate safeguarding concerns.

If you suspect abuse or neglect, it’s crucial to report it. This could be to the local authority's adult social services department, the police, or the Care Quality Commission (CQC) if the person is in a registered care setting.

Dealing with these legal matters can feel overwhelming. Here are some practical steps and sources of support:

Remember, you don’t have to navigate these complexities alone. There are many professionals and organisations dedicated to supporting individuals with dementia and their families.