Tom Evans, solicitor in our Private Client Team and a Professional Court of Protection Deputy discusses the issue of dementia and capacity and the available options

A person living with dementia does not necessarily lack capacity to make important decisions about their care, welfare, or finances. Capacity is both time-specific and decision-specific. This means a person may lack the requisite capacity to make a Will one day, only to regain it the next. Further, the fact that a person may have been deemed to lack capacity to make complex decisions about their property or finances does not mean they lack capacity to decide where they should live or who they should visit.

The truth is that mental capacity is a complex and finely balanced judgement which, unfortunately, is often oversimplified into a binary statement. Depending on an individual’s level of capacity, there are a number of options available to them.

Lasting Power of Attorney

A lasting power of attorney (LPA) is a legal document that allows you to appoint a person you trust to make decisions on your behalf in relation to financial affairs and/or your health and welfare. You may think that if you’re married or in a civil partnership, your spouse would automatically be able to deal with your bank accounts, or make decisions about your care if you’re no longer able to. However, without an LPA, your spouse would not be able to act on your behalf.

A common misconception is that Lasting Powers of Attorneys (LPAs) can only be made before a diagnosis of dementia. If someone living with dementia is able to understand, remember, weigh information and communicate their wishes in relation to a Lasting Power of Attorney, then it is likely a suitably qualified medical professional will confirm that person does have capacity to make an LPA (in spite of a diagnosis of dementia).

The Court of Protection

If it is the case that a person living with dementia has been deemed to lack capacity to make an LPA, an application to the Court of Protection for the appointment of a Deputy may be required.

The Court of Protection makes decisions on behalf of people who lack mental capacity. The court can either make ‘one-off’ decisions (such as whether an incapacitated person should receive a certain medical treatment) or the Court can appoint a Deputy to make decisions on an ongoing basis. A Deputy is typically appointed to manage a person’s property and financial affairs and must make decisions in the best interests of the incapacitated person.

A Deputy can be a relative, a trusted friend, or an independent professional. All Deputies are supervised by the Office of the Public Guardian and must provide annual accounts detailing all financial transactions and any decisions which have been made. It is very important that any prospective Deputy is aware of their obligations and responsibilities under the Mental Capacity Act before agreeing to act as Deputy.

If you would like more information about whether an LPA a Deputyship is right for you or someone in your care, please don’t hesitate to contact Tom Evans  tevans@watkinsandgunn.co.uk