Hi I’m new to this forum.
My wife has been diagnosed with Dementia a couple of weeks ago. Whilst we were waiting for the Memory Assessment Clinic to see her I started to look into Power of Attorney. (I’d done this years age for my Mom & Dad).
My wife has not really accepted the diagnosis and keeps saying it’s just stress although the psychologist explained the brain scan atrophy. She wouldn’t let me tell any of our close friends so I knew this would be a problem when it came to having the paperwork witnessed.
She did eventually agree and allowed me to talk to the Parish Nurse who’s associated with our church.
Prior to the nurse arriving I went over the forms to explain it all. When the nurse came and said that as she’d been asked to witness the forms she had to be clear that my wife fully understood what it was about she needed to ask my wife whether she understood the forms. Unfortunately, due to her short term memory she said she’d never seen them before. Now the nurse then went into a lengthy convoluted and (in my opinion) confusing explanation about DNR’s and such like which my wife couldn’t really follow. The nurse then asked if she understood what she’d been saying and my wife said not really.
(I’ve noticed since, and even before the diagnosis, that although my wife fully understands the need for a LPA when we’re just chatting - as soon as anyone in an official capacity starts asking questions, and goes into lengthy examples, as the nurse did, she’s not able to process this and always reverts to saying she doesn’t understand things.)
The nurse then said to me that she couldn’t sign to say my wife had capacity so I’m now snookered.
She said the next stage could be a Deputyship. I’ve had some estimates of costs and they are around £3000!!!
Does anyone have any ideas as to what action I should take. It would certainly be a stretch to find £3000! Can you reapply using a different witness/certificate provider?
NB. I deleted my last post and am amending as I originally read this as simply LPA for property and financial affairs, but on re-reading, it looks like you may be considering LPA for both property and financial affairs (P&FA), and also health and welfare (H&W).
If you are indeed considering both LPAs, it may be advisable to treat them separately and not try to get both certificates sorted at the same time.
The question of DNAR decisions (or “life sustaining treatment”) is indeed part of the H&W LPA, but needs to be addressed sensitively and can certainly confuse and concern someone who may already have some cognitive decline.
However, DNAR decisions have nothing to do with P&FA LPAs, hence the suggestion to address them separately, if both are being considered.
The requirements to create an LPA aren’t the same as a formal assessment of capacity (as set out in the Mental Capacity Act), although the principles are similar. The certificate provider needs to confirm that in their opinion:
the donor (the person creating the LPA) understood the purpose of this LPA and the scope of the authority conferred under it
no fraud or undue pressure is being used to induce the donor to create this LPA
there is nothing else which would prevent this LPA from being created by the completion of this instrument.
“1” means that the donor must understand that the attorney will have authority to take all decisions regarding the person’s property and financial affairs (or health and welfare) if and when they lose capacity to do so themselves.
For P&FA LPAs only, unless specified the attorney will be able to act on the person’s behalf as soon as the LPA has been registered (without the requirement of the donor lacking financial capacity). This provision does not apply to H&W LPAs.
The donor can also revoke the LPA providing they continue to have the capacity to do so.
A certificate provider can either be a person who had known the donor personally for more than 2 years, or a professional with the “relevant skills and expertise”. Clearly the certificate provider cannot be the person named as attorney.
Just because personal acquaintances may seem simpler to act as certificate provider than a professional, it doesn’t remove the requirement of a robust examination of the three questions as set out above.
There is helpful guidance on the government website, as well as all the forms.
You can get assistance to complete these forms from a solicitor or some other organisations, which will charge a fee, but they can also be completed by the person themselves using the guidance.
For someone with dementia (or any progressive condition), even if the person is unable to manage their financial affairs, they may still be able to make a P&FA LPA. There may be a window of opportunity as the condition progresses as the bar for capacity to manage financial affairs (particularly if the person’s financial affairs are complex) is higher than that for creating an LPA. It’s the understanding that someone else can manage all your affairs for you, and of course would be able to make all the decisions related to your property and financial affairs.
Clearly if the person is no longer able to understand the issues mentioned above in relation to creating a LPA, the only option is an application to the Court of Protection for a deputyship. This is inevitably more costly and bureaucratic, as the application fee is much higher and legal fees would also come into it. The Court is also less willing to create a deputyship for health and welfare unless there is some clear and specific reason for an ongoing need for health or welfare decisions.
I think that “shopping around” for a favourable mental capacity assessment is generally frowned upon. However I don’t know of any court judgment in support of this view.
It seems to me that in your case insufficient effort has been made to create the best circumstances for your wife to demonstrate her capacity to understand what she is signing. Consequently you are justified in trying again with a different assessor.
I agree that information-overload is confusing her. She does not need to retain all of that information in order to “pass the test.” It ought to be possible to prune it down to the essential elements, and to address these in stages rather than all at once.
Here are two articles which illustrate what good assessments look like :
I’m sorry to hear about the difficult circumstances you and your wife are facing, David. I think the advice on concentrating on one LPA at time is sound, and I’d suggest starting with the Property and Affairs one.
With regards to health and wellfare; health and care professionals will need to consult with you about best interest decisions in any case. I think the issue of DNR is a potential red herring at this point, as it sounds as if your wife hasn’t yeat accepted the dementia diagnosis. In any case, in practice advance decisions about life sustaining treatment need to involve a doctor to create a Respect Form.
If you can find a way to have a conversation about managing finances in the future she may grasp the concept of attorneyship i.e. that you can help her manage her finances at a point in the future, should she need it. I hear that she is not accepting the dementia diagnosis, but that need not be an obstacle to planning ahead, as I’m sure you appreciate.
There are several key parts to the Property and Affairs LPA, including how many deputies to have. In my opinion I think one of the most important aspects is whether the LPA can make decisions as soon as it is registered or only when your wife is lacking capacity to make that particular decision.
There are some lay persons’ resources available to help explain LPA’s which might help to maximise your wife’s capacity? Possibly the nurse or another certificate provider might agree to work with you so that you are using simliar terms?