What’s one of the greatest worries many of us may face at some stage in our lives? Well, it’s actually the fear of getting old and vulnerable. Understandably it’s a situation many of us naturally dread. We’re not talking here about being unable to do the physical things we were used to doing: what we’re referring to is no longer being able to cope with all the emotional and mental demands that life throws up.
Have you ever wondered how you’d feel if you reached a point in your life where you didn’t feel that were fully in control of all your faculties? What would you do? Who would you turn to make decisions on your behalf? It’s tempting to ignore these difficult questions and hope that we will never find ourselves in such an unfortunate position, but the fact is this scenario may well apply to some of us in the future. So what’s the best way to plan for such eventualities? Well, the answer is to discuss these issues with close family members well in advance whilst you still have control. In that way you can set clear and precisely-defined instructions about what you would like to happen if such an event were to occur. The law can also help in this matter.The issue of legal responsibility can be addressed by the grant of a Lasting Power of Attorney. This is a legal document, which allows you to appoint someone that you trust as your ‘attorney’ to make decisions on your behalf. These decisions can be about your welfare, your money or your property. Attorneys can make decisions for you when you no longer wish to or when you lack the mental capacity to do so. However, it’s important to note that a Lasting Power of Attorney cannot be used until it is registered with the Office of the Public Guardian.
How Does The Law Define Lacking Mental Capacity?
A person may lack mental capacity if they have an injury, disorder or condition which affects the way their mind works. This might mean they have difficulty making decisions all of the time, or that it might take them a long time to make a decision. Any assessment of someone’s mental capacity should only be made at the time when a particular decision needs to be made.
Any assessment should start with the assumption that the person has the capacity to make the decision in question. Age and appearance have no bearing on the matter: someone aged 80 can be just as sharp as someone aged 18. The assessment shouldn’t be based on an assumption about their condition or any aspect of their behaviour either. A solicitor can decide if someone is capable of making decisions or understanding things such as a will or a Lasting Power of Attorney. If they are in any doubt, they can get an objective opinion from a doctor or another appropriate professional. If there is a disagreement about the condition, the Court of Protection has power to decide whether someone has mental capacity or not.
Who Decides If Someone Is Capable Of Making A Decision?
The Mental Capacity Act Code of Practice, 2005, gives detailed guidance on how to assess someone’s ability to make decisions, but the general guidelines of what should be taken into consideration when assessing an ability to make decisions are:
- if the person understands what decision they need to make and why they need to make it.
- if the person understands what might happen if they do, or do not, make this decision.
- if the person can understand and weigh up the information relevant to this decision.
- if the person can communicate their decision (by taking, using sign language or any other means).
- if the person can communicate with help from a professional (such as a speech and language therapist).
- if there is a need for a more thorough assessment (perhaps by involving a doctor or other professional expert).
It’s important to draw a distinction here: just because a person makes a decision you don’t necessarily agree with, doesn’t mean they are therefore incapable of making a decision.
Making A Decision As An Attorney:
Any decision you make for someone lacking capacity must be made with that person’s best interests in mind. So, how do you define what is in someone’s best interests? Well the following common points should always be considered:
- all relevant circumstances should be taken into account.
- you should make every effort to encourage and enable the person who lacks capacity to take part in making the decision.
- is there a chance that the person will regain the capacity to make a particular decision in the future?
- what about the person’s past and present wishes and feelings, beliefs and values?
- are you considering the views of other people who are close to the person lacking capacity, as well as the views of an attorney or deputy?
There are two main ways you can make decisions for someone else:
- as someone’s attorney under an Enduring or Lasting Power of Attorney agreement, or
- being a deputy appointed by the Court of Protection
Registering A Lasting Power Of Attorney:
A Lasting Power of Attorney can’t be registered and used immediately, and the amount of time you might have to wait can change. The current waiting time to register a Lasting Power of Attorney is 12 weeks. The Office of the Public Guardian must check the application to make sure there are no problems. There is also a six-week period when people have a chance to object to the Lasting Power of Attorney. An attorney can only use a Lasting Power of Attorney once it has been registered with the Office of the Public Guardian. A health and welfare Lasting Power of Attorney can only be used once the donor (the person needing help) is unable to make their own decisions. A court or a medical professional will help in deciding if someone has lost the mental capacity to make decisions.
You can fill in Lasting Power of Attorney forms for yourself, or if you are helping someone else make a Lasting Power of Attorney. However Lasting Power of Attorney forms can be complicated and you may have to seek professional legal advice from experts like Harold Stock, particularly if there are complicated details (such as finances) or specific instructions for the attorneys involved.
For further information about Lasting Powers of Attorney call Harold Stock & Co on 01457 835597, or email info@haroldstock.com.
