Can you get a Power of Attorney if someone has dementia? 

A dementia diagnosis can be a challenging time for both the individual and their loved ones. One of the many questions that may arise is whether someone with dementia can still grant a Power of Attorney. The answer is not a simple yes or no and depends on the individual’s mental capacity at the time they wish to grant the Power of Attorney. 

What is a Power of Attorney? 

A Power of Attorney is a legal document that allows you to appoint someone you trust, called an attorney, to make decisions on your behalf if you are no longer able to. This can be particularly important for individuals with dementia, as the condition can affect their ability to manage their affairs as it progresses. 

The Power of Attorney can include both financial powers, which allows your attorney to manage your finances, such as paying bills, accessing bank accounts, and selling property, and a welfare, which allows your attorney to make decisions about your health and care, such as where you live, what medical treatment you receive, and your daily routine. 

Mental capacity and dementia 

The key factor in determining whether someone with dementia can grant a Power of Attorney is their mental capacity. Mental capacity means being able to understand, remember and use information to make a decision. In the context of dementia, this means the individual must understand what a Power of Attorney is, who they are appointing as their attorney, and the powers they are granting. 

It’s important to understand that a diagnosis of dementia does not automatically mean that a person lacks mental capacity. In the early stages of dementia, many individuals retain the ability to make decisions about their finances and welfare. However, as the condition progresses, their mental capacity may decline. 

Assessment of mental capacity 

Only a medical professional, such as a doctor, can assess mental capacity. If there is any doubt about an individual’s capacity, it’s crucial to seek a professional assessment. In Scotland, a solicitor may ask a GP or specialist doctor to meet with the individual and confirm whether they are able to grant a Power of Attorney. 

What if someone with dementia can’t grant a Power of Attorney? 

If someone with dementia no longer has the mental capacity to grant a Power of Attorney, there are other options available. In Scotland, an application to the Court known as Guardianship may be required. 

Importance of early planning 

It is always advisable to set up a Power of Attorney while you still have full mental capacity. This is particularly important for individuals with dementia, as the condition is progressive. Granting a Power of Attorney early on can provide peace of mind for both the individual and their loved ones, knowing that their wishes will be respected even if they lose capacity in the future. 

Getting help with Power of Attorney 

If you are considering setting up a Power of Attorney or have any questions about the process, there are several resources available to help. The Office of the Public Guardian can provide information and guidance on Powers of Attorney, organisations such as the Alzheimer’s Society and Age UK can offer support and we can assist with the drafting of Powers of Attorney. If you wish to set up an appointment with one of our team, please be in touch.