When you create a will or a Lasting Power of Attorney, one of the first steps is to check whether you have the mental capacity to make those decisions for yourself. I wanted to tell you about a lady I recently met with dementia and what the process will be for her family.

The client

I recently saw a lovely lady who wanted to create Lasting Power of Attorney (LPA), so her family could manage her affairs when she couldn’t. When I saw her, I wasn’t sure she had capacity, so I asked for a capacity assessment. This is a process where a qualified social worker, psychiatrist or psychologist assesses you and prepares a report.

My client couldn’t retain information or use it to make a decision. She also couldn’t repeat what I said back to let me know she’d understood. I tried using diagrams as making information pictorial can be better for some people, but that didn’t work either.

Since then, a social worker has seen her and prepared a report saying that she doesn’t have capacity, so it’s too late to create an LPA.

What happens now

We’re now in a position where we’ll need to apply for a deputy order so her loved ones can manage her affairs. There’s already some friction within the family, so there may be some argument about who applies and whether that will be challenged. This wonderful lady won’t be able to decide what she wants, and it looks like her family might fight it out amongst themselves.

Creating an LPA is straightforward, as you can make a decision and have the documents drawn up. A deputy order needs an application to court so they can decide what’s in your best interests. It involves a lot more paperwork, and it can take 6-9 months, which is a long time if your loved one is struggling.

Unsurprisingly, it’s also a lot more expensive. There are Court fees, assessment fees for guardians and legal costs. Guardians must file annual reports with the Office of the Public Guardian, which creates ongoing fees of £320 a year. When you make an LPA, you only pay once, and the costs are much lower.

You’re never too young to create an LPA.

There are some circumstances where you can’t create an LPA. I’ve supported some families where children need to be subject to a deputy order as they’ve never had capacity due to illnesses from childhood. Everyone else can create an LPA.

You’re never too young. I had a 25-year-old client who dived into a pool on holiday and was paralysed. He was in a coma in a foreign hospital for a few months, but his bills still needed to be paid, and his parents had to deal with all that additional stress.

Statistically, you’re much more likely to be seriously injured than killed. 26,701 people were seriously injured in road accidents in 2020/21, but only 1,608 were killed. In the same period 123 workers were killed in workplace accidents while over 50,000 accidents at work led to an absence of 3 days or more.

Unfortunately, my current client doesn’t have a choice about creating an LPA, so I’ll support the family through a deputyship application. It’s why I recommend that all my clients create their LPAs while they’re still able to make their own choices.

Do you need to create an LPA? Get in touch using the form below or call us on 0116 380 0752.