Mental Capacity & Decision Making
It’s often assumed that people suffering with dementia lack mental capacity and are unable to make decisions for themselves.
In reality the legal position is not black and white. The Mental Capacity Act 2005 states that a person cannot be assumed to lack capacity purely by reference to their diagnosis or condition.
Mental capacity is decision specific, and most individuals do not lack capacity in respect of every single decision. This means that someone might have capacity to make decisions about their weekly food shop but would struggle to oversee the sale of their property.
A person with Alzheimer’s must always be supported to make the decisions that they are capable of.
Planning for the Future – Lasting Powers of Attorney
Dementia is not a natural part of aging; however, the likelihood of developing dementia increases significantly with age. It is highly recommended to consider what you would like to happen regarding your finances and health, should you become unable to make these types of decisions for yourself.
A Lasting Power of Attorney (LPA) grants authority to someone else to make decisions on your behalf. There is one type of LPA covering financial decisions, and another covering personal welfare decisions – such as medical treatment.
It is very important for adults to put these documents in place, and to have open conversations with family (or anyone important to you) so that you can explain what you would like to happen in the event of a loss of capacity. This situation is very common with those that have been diagnosed with dementia. However, it can affect younger people too, for instance those who have been in road traffic accidents.
An LPA can only be made if a person still has mental capacity to understand the decision. A person with Alzheimer’s may still have capacity to do this, particularly if they have received an early diagnosis.
What Happens if I Don’t Plan Ahead?
If an LPA has not been put in place, and the person no longer has capacity to do so, the only remaining option is Court of Protection deputyship.
This involves the court appointing someone to act on your behalf as a deputy. It is a similar arrangement to acting as attorney, however a deputyship should be the option of last resort.
Under a deputyship you do not make the decision about who should act for you, this is up to the court.
It can be a complex and time-consuming process, sometimes taking up to 12 months to obtain the deputyship order from the Court of Protection, leaving families in financial limbo.
It is far more expensive to obtain a deputyship when compared to an LPA, and deputies that are appointed by the court have additional reporting duties and obligations, which means acting as a deputy is more onerous than acting as attorney.
Therefore, it’s highly recommended to plan ahead wherever possible by putting an LPA in place and having these important conversations about your wishes with loved ones in advance.
If you want to discuss any of the matters raised in this article, then please contact our Wills and Probate team on 03456 465 465 or email enquiries@rotherabray.co.uk
To see how you can take part in World Alzheimer’s Month visit: https://www.alzheimers.org.uk/get-involved/world-alzheimers-month
Disclaimer: This blog is for information only and does not constitute legal advice. If you need legal advice please contact us on 03456 465 465 or email enquiries@rotherabray.co.uk to get tailored advice specific to your circumstances from our qualified lawyers
