Power of attorney and dementia: what carers need to know
Dementia and capacity are a progressive issue. Here's the right time to execute an EPA, and what happens when it's too late.
An EPA must be executed while the testator has capacity. For someone with early-stage dementia, there's usually still enough capacity to execute an EPA – but the window closes. Once capacity is lost, the only option is a SACAT administration order, which is slower and more expensive.
Capacity is progressive
Dementia doesn't remove capacity overnight. Early-stage dementia often leaves capacity to execute an EPA – the testator understands what they're signing, who their attorney is, and the consequences. Later-stage dementia removes this capacity.
The window to act
Once there's a dementia diagnosis, don't delay. Execute the EPA while capacity is clearly intact. A capacity assessment from a GP or geriatrician at the time of signing can protect against later challenges.
What capacity means for an EPA
The testator must understand: the nature of the document (authorising someone to manage your affairs), the identity of the attorney, the scope of the attorney's powers, and the consequences of execution (including that the EPA endures through later incapacity).
If capacity is lost
The testator can no longer execute an EPA. The family's only option is an SACAT application for administration – a court-like process where SACAT appoints an administrator for financial matters. This takes 2-6 months and is meaningfully more expensive than an EPA.
Witnessing
For clients with dementia, the authorised witness's role in certifying capacity is especially important. Sam handles capacity-sensitive EPA execution carefully – sometimes in conjunction with a GP assessment – to minimise later challenge risk.
Summary
Dementia and capacity are a progressive issue. Here's the right time to execute an EPA, and what happens when it's too late.
Talk to Sam about your situation
If this article raised questions for your own circumstances, Sam Michele offers free 20-minute initial consultations. Learn more about our enduring power of attorney service, or book a consultation.
Related reading
- Power of attorney for elderly parent
- Signing documents for someone losing capacity
- Enduring powers of attorney service
Disclaimer: This article is general information only and does not constitute legal advice. Estate planning is deeply personal - every family's circumstances are different. For advice specific to your situation, please contact Rosewood Succession Solicitors.