How the law can help when loved ones lose mental capacity


Medical advances and better health education mean people are enjoying longer and more active lives than ever before.

There are still risks, however. With more people living into their eighties and nineties, there are a rising number of dementia cases. According to the Alzheimer’s Society, more than a million people in the UK will be affected by 2025.


In many cases the heartache and stress for relatives can be exacerbated by the fact that the sufferer may lose the capacity to make decisions about their health care and their financial and business affairs.


Many of these problems would be avoided if the sufferer had set up a lasting power of attorney (LPA) before becoming ill.


LPAs come in two forms and enable you to nominate someone you trust to make decisions on your behalf if you lose the capacity to do so for yourself.


The property and finance LPA allows you to appoint someone to look after your financial affairs.


The personal welfare LPA lets you grant an attorney authority over such matters as the kind of health care you receive – even to the point of refusing lifesaving treatment in certain circumstances.


In cases where a person loses capacity without having set up an LPA, anxious relatives can apply to the Court of Protection to ensure both health care and financial matters are managed properly.


The court has the power to decide whether a person has the capacity to make decisions for themselves and it can make declarations, decisions and orders about financial and welfare matters on their behalf. It can also appoint a deputy to make decisions on the sufferer’s behalf.


The court can also create a statutory will or approve changes in the terms of an existing will if there is a convincing case for doing so and there is reliable evidence that the changes would be in accordance with the person’s wishes had they not lost capacity.


The court will always make sure that its decisions are in the best interest of the person who lacks capacity and so it also has the power to remove deputies who fail to carry out their duties properly for the benefit of the patient.


For families facing what are often heart rending dilemmas, the Court of Protection offers a chance to find a legal solution that would be in keeping with the wishes of the sufferer before they lost mental capacity.


For more information about this article or any aspect of our Wills and Probate and Power of Attorney services, please call Philip Popeck or Neysan Valente on 020 8907 2000 or click here to email them and they will be delighted to help you (there is no charge for an initial telephone discussion).

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