What is legally acceptable as dementia diagnosis in written form?
- Thread starter Haho
- Start date
Hello and welcome @Haho.
I agree with the thought that capacity is a main issue. A diagnosis doesn't mean an automatic loss of capacity.
There is a Society Factsheet that helps with the details of LPA and if you would like to read that just click the 2nd line of the following link
Lasting power of attorney (472)
PDF printable version
I agree with the thought that capacity is a main issue. A diagnosis doesn't mean an automatic loss of capacity.
There is a Society Factsheet that helps with the details of LPA and if you would like to read that just click the 2nd line of the following link
Lasting power of attorney (472)
PDF printable version
hello @Haho
a warm welcome to DTP
a diagnosis of itself does not necessarily mean that your aunt no longer has the capacity to manage her own affairs and make her own decisions
if you are named as her Attorney on an LPA, you can help her manage her finances with her permission ... you cannot take over management until you consider that she doesn't have the capacity to make particular decisions for herself .... and the LPA for Health&Welfare doesn't come into effect until she no longer has capacity
however, I wonder whether you are concerned about your aunt, and yourself believe she needs help now and is no longer able to manage her affairs ... if the LPA states specifically that lack of capacity has to be decided by a health professional, the confirmation of a diagnosis isn't sufficient ... if there is no such stipulation on the LPA, when an Attorney honestly believes the donor no longer has capacity, the LPA can be registered with the OPG (if it hasn't already been registered) and if/when registered can come into effect eg you can take a certified copy to her bank to take on the management of her bank accounts
a warm welcome to DTP
a diagnosis of itself does not necessarily mean that your aunt no longer has the capacity to manage her own affairs and make her own decisions
if you are named as her Attorney on an LPA, you can help her manage her finances with her permission ... you cannot take over management until you consider that she doesn't have the capacity to make particular decisions for herself .... and the LPA for Health&Welfare doesn't come into effect until she no longer has capacity
however, I wonder whether you are concerned about your aunt, and yourself believe she needs help now and is no longer able to manage her affairs ... if the LPA states specifically that lack of capacity has to be decided by a health professional, the confirmation of a diagnosis isn't sufficient ... if there is no such stipulation on the LPA, when an Attorney honestly believes the donor no longer has capacity, the LPA can be registered with the OPG (if it hasn't already been registered) and if/when registered can come into effect eg you can take a certified copy to her bank to take on the management of her bank accounts
hello @Haho, thank you for asking this question. I am just dealing with exactly this. Thanks to @karaokePete and @Shedrech for really helpful replies.
I have a copy of my mother's consultant's report and it gives a detailed breakdown of her ACE-III score including attention 7/18, memory 7/26, fluency 2/14. Does anyone have experience that this would be enough, or would other members advise me still to get a note from her GP for the Office of the Public Guardian to confirm she no longer has capacity so that the H&W LPA is triggered?
Apologies for crashing your thread @Haho and I hope the situation with your Aunt is not causing you huge stress.
I have a copy of my mother's consultant's report and it gives a detailed breakdown of her ACE-III score including attention 7/18, memory 7/26, fluency 2/14. Does anyone have experience that this would be enough, or would other members advise me still to get a note from her GP for the Office of the Public Guardian to confirm she no longer has capacity so that the H&W LPA is triggered?
Apologies for crashing your thread @Haho and I hope the situation with your Aunt is not causing you huge stress.
I could never get anybody to confirm officially that The Banjoman was no longer capable of making intelligent decisions so just started producing the already registered LPA to all and sundry.
Edited to add that we did have a letter saying he had LBD but it was still difficult to get any professional to declare he lacked capacity so I went ahead without.
Edited to add that we did have a letter saying he had LBD but it was still difficult to get any professional to declare he lacked capacity so I went ahead without.
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Unless the POA specifically states that a health professional must decide whether they have lost capacity (it is an unusual clause - most do not have this), then the best person to decide whether they have capacity is the person who is with them most. - probably you.
Capacity is a slippery thing. You can have capacity for one thing, but not another and they can have capacity one day and not the next.
@MartinWL has a list of very useful pointers to help make the decision about capacity and I hope he will post them for you
Capacity is a slippery thing. You can have capacity for one thing, but not another and they can have capacity one day and not the next.
@MartinWL has a list of very useful pointers to help make the decision about capacity and I hope he will post them for you
I agree with all the other comments, but also want to this....capacity can vary from minute to minute, day to day, week to week in many conditions not just dementia. It is very difficult for anyone with any expertise to say if a person does or does not have capacity, because a person may not know what is right for them overall, but they may for example still be able to manage some aspect of their life. As others have said a diagnosis is not an indication of a persons capacity and my mum was star example of that for a long time.
Out of interest, a diagnosis can take different forms and caution is needed if the diagnosis is a working one (working diagnosis or impression) or a definite proven diagnosis, because they both indicate what the illness or condition is, but that is not the same as saying someone does not have insight into their affairs etc.
I started to use mums LPA when she showed signs of not being able to make some decisions on her finances, and as far as I am aware that is a time to act as LPA -I may stand corrected by certain members
Forgot to mention that the MCA states clearly that a person must be assumed to have capacity unless proven otherwise and every effort should be made to seek capacity -thats the law
Out of interest, a diagnosis can take different forms and caution is needed if the diagnosis is a working one (working diagnosis or impression) or a definite proven diagnosis, because they both indicate what the illness or condition is, but that is not the same as saying someone does not have insight into their affairs etc.
I started to use mums LPA when she showed signs of not being able to make some decisions on her finances, and as far as I am aware that is a time to act as LPA -I may stand corrected by certain members
Forgot to mention that the MCA states clearly that a person must be assumed to have capacity unless proven otherwise and every effort should be made to seek capacity -thats the law
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I am dealing with the old fashioned enduring power of attorney for finances. This states clearly that when the attorney is aware that the donor is losing (not "has lost") capacity to manage their own finances the attorney must then register the EPoA with the OPG. This involves completing a number of forms including one which the attorney must give in person to the donor. There is no requirement for any formal medical letter. The donor or any of the other relatives who have to be notified of the intention to register the EPOA, can object but only on specific grounds. Lasting Power of Attorney may be different in what's required.
I did have to obtain medical confirmation of loss of capacity to manage finances in order to extract the original EPoA document from the solicitors who held it. The necessary letter was provided without any fuss by the doctor attached to the Memory Team responsible for mum.
I did have to obtain medical confirmation of loss of capacity to manage finances in order to extract the original EPoA document from the solicitors who held it. The necessary letter was provided without any fuss by the doctor attached to the Memory Team responsible for mum.
May I comment on what Cardiff Girl has said regarding the old style EPA, which is what I have for my aunt. The problem with that, is that if the attorney believes that the person with dementia lacks capacity, then the OPG must be informed and all power is then taken out of the PWD and the attorney’s hands. The problem with this is in interpreting the term ‘lack of capacity’. My aunt is no longer able to manage her financial affairs and I have been dealing with this on her behalf satisfactorily for several years. Similarly, all aspects of healthcare have to be co-ordinated by me because she is unable to manage these things for herself. But-and it is a very Big but- all the healthcare and legal professionals involved in her care, including family, are all satisfied that she still knows what she does and does not want and is capable of making decisions for herself (even if they may not be the most sensible ones!)
The problem with an EPA is that it confuses lack of capacity over financial issues with lack of capacity in everything, which may well not be the case, but could cause disaster in dealing with the care of an old person. This is one good reason why the laws over POAs were changed and separate Lasting POAs need to be taken out to cover both finances and health and welfare.
The problem with an EPA is that it confuses lack of capacity over financial issues with lack of capacity in everything, which may well not be the case, but could cause disaster in dealing with the care of an old person. This is one good reason why the laws over POAs were changed and separate Lasting POAs need to be taken out to cover both finances and health and welfare.
My husband cannot manage finances, use a mobile phone, drive a car etc but he is still capable of deciding what he wants and doesn't want.
As Canary said, capacity is a slippery thing and I think unfortunately some people take advantage of that and invoke the PoA when it suits them. Our GP wrote a testamentary letter of capacity for OH when we rewrote our wills a couple of years ago but he knows him very well and has been our doctor for years and I feel that this is rock solid and makes me feel comfortable.
Funnily enough, I have never been asked about his capacity, PoA or anything similar. I am next of kin but that doesn't carry the same authority that it used to.
As Canary said, capacity is a slippery thing and I think unfortunately some people take advantage of that and invoke the PoA when it suits them. Our GP wrote a testamentary letter of capacity for OH when we rewrote our wills a couple of years ago but he knows him very well and has been our doctor for years and I feel that this is rock solid and makes me feel comfortable.
Funnily enough, I have never been asked about his capacity, PoA or anything similar. I am next of kin but that doesn't carry the same authority that it used to.
Thankyou @Palerider @canary @Lawson58 and others - this is such a delicate area isn't it? And definitely yes, I can absolutely see with my mum that she has capacity to make some decisions about her health & welfare but not necessarily others - seeking a diagnosis for her being a case in point (I posted about this a few weeks ago).
It's a huge responsibility to try to support Mum to understand and take decisions herself wherever possible. Was a big deal to override her and I hope it will be ages before I need to make another intervention like that.
The LPA for Finance that my parents set up took effect from the moment they were registered - it's the LPA Health & Welfare which ONLY comes into effect when the person has lost capacity. The private carers we have contracted want copies demonstrating that I have PoA. Mum's carer is a trained MH nurse so I guess they are capable of making a correct judgement as to whether Mum has capacity for a decision or not, and I can just send over the paperwork.
My parents set up their LPA's with each other as First Attorney and Mum is no longer capable of acting as Dad's attorney, so we need to activate his reserve attorney on both his LPA's.
In case this helps anyone in a similar position, I rang the Office of the Public Guardian and they said either Mum's diagnostic report or a letter from her GP explaining that she no longer has capacity to serve as an attorney should be enough. In our case the diagnostic report didn't mention capacity, so I've been advised to contact Mum's GP. I have to send his letter to OPG together with Dad's original LPA documents. They will stamp the original documents beside Mum's name removing her, and beside his reserve attorney's name activating them, and then return the LPA's to us to copy and lodge with the bank etc.
It's a huge responsibility to try to support Mum to understand and take decisions herself wherever possible. Was a big deal to override her and I hope it will be ages before I need to make another intervention like that.
The LPA for Finance that my parents set up took effect from the moment they were registered - it's the LPA Health & Welfare which ONLY comes into effect when the person has lost capacity. The private carers we have contracted want copies demonstrating that I have PoA. Mum's carer is a trained MH nurse so I guess they are capable of making a correct judgement as to whether Mum has capacity for a decision or not, and I can just send over the paperwork.
My parents set up their LPA's with each other as First Attorney and Mum is no longer capable of acting as Dad's attorney, so we need to activate his reserve attorney on both his LPA's.
In case this helps anyone in a similar position, I rang the Office of the Public Guardian and they said either Mum's diagnostic report or a letter from her GP explaining that she no longer has capacity to serve as an attorney should be enough. In our case the diagnostic report didn't mention capacity, so I've been advised to contact Mum's GP. I have to send his letter to OPG together with Dad's original LPA documents. They will stamp the original documents beside Mum's name removing her, and beside his reserve attorney's name activating them, and then return the LPA's to us to copy and lodge with the bank etc.
Beware that GPs are increasingly reluctant to assess capacity, @ganymede . Mums GP would not sign the form saying that she had lost capacity that I needed for the Court of Protection when I applied for deputyship (mum wouldnt give me POA and then it was too late). If your mums GP wont do it you may have to find a private SW who will be able to.
This is an interesting discussion. My mother had set up the old EPA for my brother and myself years ago. She was in hospital for about 8 weeks then we moved her to a care home (self-funding.) So the change was really sudden! We registered the EPA while she was in hospital - the manager at the CH showed mum the letter (which she would not have understood, though she was obsessed with money!) and my children - the only other possible interested parties - were also informed.
However... I have no idea what we had to provide in the way of diagnosis/capacity. Mum had no diagnosis at all at that time - it didn't come till about 6 months after I moved her to the CH. All she had was the bump on her head from the fall that had landed her in hospital. Before that she was living alone, hadn't seen a doctor in years and was completely under the radar. So this proves you can sort the power of attorney without a diagnosis.
However... I have no idea what we had to provide in the way of diagnosis/capacity. Mum had no diagnosis at all at that time - it didn't come till about 6 months after I moved her to the CH. All she had was the bump on her head from the fall that had landed her in hospital. Before that she was living alone, hadn't seen a doctor in years and was completely under the radar. So this proves you can sort the power of attorney without a diagnosis.
I am flattered by the recommendation but don't personally deserve any credit as what I have posted before comes straight out of the Mental Capacity Act 2005. To ascertain whether a person has capacity for a specific decision:
1. Does he/she understand information given to him/her in relation to the decision? (e.g. a diagnosis, facts of the matter etc)
2. Can he/she remember that information for long enough to consider it and make a decision?
3. Can he/she weigh up the pros and cons of different courses of action?
4. Can he/she communicate the decision he/she makes?
A person has to be able to do all four things to have capacity. The person is entitled to make a stupid foolish decision if he/she so wishes, if he/she has capacity. Every decison has to be considered separately - just because a person can't understand the issues involved in, say, selling off their stately home in the country to pay for repair of their flat in Bayswater, does not mean that person lacks the capacity to decide what shoes to buy.
I had to use these tests myself in a difficult situation, when I sold my father's car against his wishes, after his driving licence was cancelled by DVLA. I reasoned that he had not understood his dementia diagnosis or why the doctor thought he was not fit to drive, because he essentially didn't believe there was anything wrong with him, and it was therefore impossible for him to pass tests 1 or 3. So I sold his car and endured the resulting fury. It is not laid down who exercises the wisdom of Soloman in these situations but as I had POA it unfortunately fell on my shoulders to do the dirty deed.
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