Whilst many clients appreciate the importance of having Lasting Powers of Attorney (LPAs), there are still many individuals who think it will be ok if they just “wait and see” and that it’s a simple case of putting the documents in place if they start to lose capacity in the future. The point is that by then it could all be too late and your relatives could find themselves knee deep in deputyship application papers and faced with the onerous task of annual reporting; not to mention the payment of application fees, supervision fees, deputy bonds…and the list goes on.
A question of capacity – when is it too late?
The question of capacity is both time and subject-specific. Just because Mum was having a bad day on Monday and was very confused, does not mean she cannot make a Lasting Powers of Attorney (LPA) on Friday when her capacity has improved. Similarly, Mr Bloggs may have the capacity to make a Will because it is a process he is familiar with, having previously updated his Will on numerous occasions. However, this does not mean he will have the capacity to complete a Lasting Powers of Attorney (LPA) – a process and document he has never encountered before and does not understand.
As a private client lawyer, I need to have regard to the Mental Capacity Act 2005 at all times. The legislation states that a person lacks capacity in relation to a matter if, at the material time, he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. In practical terms, this means I need to know that my client is able to understand and retain the information I give to them. Beyond this, my client needs to weigh up the information to make their own decisions and effectively communicate their instructions.
You can perhaps see why meeting the requirements of the legislation is not so simple when you are faced with a client who has already started to lose capacity. A lawyer may not be comfortable signing off on a person’s capacity without obtaining a doctor’s report, or asking the Court of Protection to make a determination of capacity; both roads which lengthen the process and increase the cost.
So to avoid any difficulties occurring in relation to capacity, the most prudent course of action is to put LPAs in place in good time and way ahead of when you envisage they may be needed. I often say to my clients “think of it like an insurance document” – you may go on until your last innings with full capacity to make decisions for yourself but then again you may not. If the latter is the case, then you will have the insurance in place to ensure your chosen attorneys can manage your property and financial affairs and/or make decisions regarding your health and welfare.
We are happy to answer any questions you may have regarding Lasting Powers of Attorney if you or a family member has been diagnosed with Dementia and or there has been a further question of capacity, please contact our dedicated Wills, Trusts and Probate team by calling 01603 598000 or by emailing firstname.lastname@example.org.
*The information provided in this article is designed to provide useful information on the subject, not to provide specific legal advice.
**Related article: 14 May 2020 – Can I make a Lasting Powers of Attorney if I have Dementia?