Mental Capacity: Time to protect yourself, your loved ones and your assets.
Posted on 3 October 2019 by Catherine Murton
Having just spent a week on a narrow boat in the rain with the long-suffering Martin, our four adult children, a couple of partners and the dog I thought this month I would consider what constitutes mental competence. Believe me, the family ‘holiday’ certainly made me question mine, especially as the whole thing was my idea! I blame gin!
As a private client solicitor mental capacity is something that I am regularly required to judge. Until recently, if there were any particular concerns, we would seek the advice of the individual’s GP but GP’s are under increasing time pressures and are now reluctant to undertake mental capacity tests as a matter of routine. As a result solicitors are faced with the choice of making the assessment entirely on their own judgement or seeking a privately funded mental capacity assessment, which can be quite costly.
The Mental Capacity Act 2005 provides that the starting point is always to assume that a person has mental capacity to make a decision. They should be given every opportunity to make their own choices and the professionals involved should assist them to do so. This doesn’t mean that we put words into their mouths but more that we consider whether questions can be worded more simplistically or whether they are more alert at a particular time of the day.
The legal profession is often required to judge whether a person has capacity to execute a Will, whether they understand the consequences of signing a contract for the sale of their home or perhaps if they are able to make all of the necessary decisions as an executor of a deceased person’s estate.
Mental capacity to make a Will is particularly important as if it can be shown that the testator did not understand the extent of their assets or the manner in which they were distributing them the Will may be contested and, if successful, set aside.
The loss of mental capacity can leave an individual extremely vulnerable. They may no longer be able to manage their own financial affairs or may struggle to cope in an unsuitable property because they cannot comprehend the process of selling and moving elsewhere. It is often at this stage that loved ones want to step in to assist.
If a Lasting Power of Attorney has been executed their chosen attorney will be able to act on their behalf. Sadly, many people do not consider the consequences of the loss of mental capacity until the situation actually arises. By then it is usually too late to execute a Lasting Power of Attorney as the donor must have sufficient understanding of their assets and the operation of the Power of Attorney to sign the documentation.
Where someone needs to be appointed to deal with the affairs of a person who has lost mental capacity and there is no Lasting Power of Attorney in place, an order for the appointment of a Deputy must be sought from the Court of Protection. This can be costly and takes up to six months to complete. The court will only very rarely appoint a Deputy for Health and Welfare decisions.
If you would like to discuss any of the issues raised I can be contacted on 01935 382689 or, alternatively at firstname.lastname@example.org.