Irwin Mitchell Private Wealth | Capacity and enabling decision making

Purple ribbons at the end of May signal Dementia Awareness Week, aimed at improving the lives of people with dementia.

It’s important to remember that a dementia diagnosis doesn’t necessarily mean the end of the road legally for that person. The law encourages finding ways to help make it easier for them to continue making decisions, with the different tests of capacity to do so completed when needed. It may still be possibly to make a Will or a Lasting Power of Attorney (LPA), even if the person doesn’t have the capacity to manage their affairs.

Once someone is diagnosed with dementia, there’s no time to lose in ensuring that their personal legal affairs are in order. If it’s left too long after the diagnosis, it could simply increase the costs, because meetings and detailed capacity reports may be needed. This is to ensure that someone still has the capacity to prepare a document themselves. A delay, with capacity declining, could also prevent certain documents being put in place at all, triggering an application to the Court of Protection for a Deputyship Order or a Statutory Will, processes which are far more costly and time- consuming than if the individual prepared the documents themselves whilst they had capacity to do so.
Following a diagnosis, if a Will or LPA is in place these should be reviewed to ensure everything is valid and meets the revised circumstances, and that no amendments are required. Someone may think they have everything in place, but for instance the introduction of the Residence Nil Rate Band means that if a Will doesn’t take account of this, it may need updating, or an application may need to be made to the Court of Protection for a Statutory Will.
If there is no Will or LPA, the person living with dementia must be advised that these need to be drawn up with professional legal advice. Depending on their wishes and requirements it may also be appropriate to draw up an ADRT - Advance Decisions to Refuse Treatment.
Wills – no-one should ever assume that intestacy rules will pass their assets to an obvious individual and therefore they do not need a Will. With no Will, there’s no-one automatically entitled (as executor) to deal with the estate, which means problems for the family if organisations decline to discuss matters with them. There’s also no guarantee that an estate will pass entirely to a spouse if there are also children and direct descendants. It also opens the risk to disputes if multiple people feel they should be dealing with the administration of an estate.
LPAs – there are two types. The first is a Financial Decisions LPA, which gives the designated attorney authority to deal with specified property and finances. The other is a Health and Care Decisions LPA, which allows the attorney to make health and welfare decisions on someone’s behalf – but only when they lack mental capacity to do so. This could also extend to giving or refusing consent to the continuation of life sustaining treatment. Without an LPA, no-one will be authorised to make decisions without a costly and time-consuming application to the Court of Protection. This can create stress and financial pressure for family members as they won’t have access to the person’s funds to pay for things on their behalf, or to make decisions regarding how they are treated. Some 12.8m people in the UK are at risk of developing dementia but only 928,000 Health and Welfare LPAs are registered, according to Solicitors for the Elderly. It found that while 73 per cent of the population are concerned about losing capacity, 36 per cent of people hadn’t prepared in any way for later life.
ADRT – This is a document that enables someone to specify in advance their wishes regarding future possible medical treatment. They are sometimes called “Advance Directives” or “Living Wills”. An ADRT can only be used where someone has lost the ability to make decisions about their own medical care. ADRTs are legally binding and must be followed.

It’s vital that increased social awareness around dementia translates into effective action to help those living with dementia with their financial and legal rights, and to put into effect their wishes.

You can learn more about Attorneyship and Deputyship an how Irwin Mitchell can help on our Later Life Planning pages.

Published: May 2019

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