Sue Preece, an Associate at Yorkshire-based Chadwick Lawrence LLP, provides practical insights for care homes on the legal complexities of dementia care, including mental capacity, lasting power of attorney and Court of Protection.
When an individual has been diagnosed with dementia it is important to consider at the outset whether there is a power of attorney in place.
There are two main types of power of attorney that an individual may have:
Lasting Power of Attorney (LPA): This document allows an individual to appoint trusted persons to make decisions about their finances, their health and welfare, or both, should they become unable to do so themselves.
Enduring Power of Attorney (EPA): Prior to October 2007 it was possible to create an EPA to appoint a trusted individual to make decisions about financial matters only. It is no longer possible to make an EPA, but EPAs made before October 2007 are still valid and can be used. An Enduring Power of Attorney would need to be registered before use.
Care providers are often the first to notice changes in residents' needs and therefore play a crucial role in helping families understand the purpose and scope of various legal documents, ensuring all aspects of their loved one’s care are addressed. This includes helping families take appropriate steps, whether through a registered LPA or by applying to the Court of Protection, and ensuring they are informed about the necessary processes.
If an individual was to lose capacity to make their own decisions, for example, if they develop dementia, without a valid power of attorney in place, they would fall under the jurisdiction of the Court of Protection. In such cases, it is important to consider whether the individual requires a Deputy to be appointed by the Court to assist with decisions about their finances, their health and welfare or both. The proposed Deputy may be a family member or a professional, such as a solicitor, or the Local Authority.
A Deputy is responsible for ensuring that the financial security of the person who lacks capacity is maintained, whilst also making sure that their funds are used to care for them and provide for their needs. The Court has robust systems in place to ensure that any Deputies appointed are suitable to undertake this role and that they understand the duties they are required to carry out.
During the application process, close family members would be notified of the proposed appointment. This process ensures that the views of all persons close to the individual who requires a Deputy are considered. The Court will also require evidence to confirm that the individual who requires a Deputy lacks capacity to make decisions about either their finances or health and welfare.
If an individual owns their home, or any other property, and moves into a care placement, the Court will request a copy of the standard authorisation from the Local Authority for the care home placement before any proposed sale of their property is approved. As this process can be lengthy, it is important to initiate dialogue with the Local Authority as early as possible to ensure that funds can be accessed to meet the individual’s needs and pay for care home fees.
Dementia Awareness and Legal Support
As care home managers play a crucial role in supporting residents and their families, it is essential to understand the legal frameworks surrounding care. For specialist advice on matters such as deputyships or powers of attorney, it is important to choose a law firm with expertise in supporting older clients. Look for firms committed to raising awareness of dementia and supporting affected families, as they are better equipped to guide you through these legal processes.
Consider using resources such as The Law Society website, or Lifetime Lawyers online directory, services which help find solicitors specialising in this area. Additionally, the Alzheimer’s Society provides a directory that can connect you with local services and specialists focused on dementia care.
Understanding the Mental Capacity Act 2005 is also critical, as it provides guidelines for assessing capacity and protecting the rights of individuals who can no longer make decisions. Training staff in dementia care, including legal and practical considerations, can significantly improve experiences for residents and their families. Some law firms will offer free webinars or talks, or you can arrange for them to come and deliver a bespoke training session for your team. A well-informed approach fosters a supportive environment that promotes dignity and respect.
Working Together for Better Care
Care homes, families, and legal professionals must work together to ensure that individuals living with dementia receive comprehensive care, safeguarding their legal rights. Whether guiding families through the process of registering an EPA, or making applications to the Court of Protection, the legal aspects of dementia care are as important as the day-to-day support provided.
Being prepared means ensuring that every individual’s wishes are respected and protected, even when they can no longer advocate for themselves.
At Chadwick Lawrence, we understand the vital role that care homes can play in supporting individuals living with dementia and we appreciate the compassionate care provided by these facilities.
The firm’s specialist Court of Protection team has helped care homes navigate these challenges by providing guidance and assistance with Court of Protection applications, preparing powers of attorney and reviewing mental capacity. We believe that combining legal expertise with a deep understanding of dementia care empowers care homes to better serve their residents and families
