Mental Capacity: Your Choices

Individuals sometimes lose mental capacity. This may be the result of a long-term degenerative process, or it may happen unexpectedly or suddenly, maybe as a result of an accident. This note gives a brief explanation of the possible action that can be taken in advance to smooth the financial and personal problems that would arise if this were ever to happen to you, or to a member of your family.

THE CHOICES IN OUTLINE

Many people have heard of using Lasting Powers of Attorney (LPAs) to approach this problem. There are two types of LPA: one relates to property and financial affairs; and the other relates to health, medical and personal welfare decisions. You can give both types of power, or just one - or, of course, neither.

LPAs are the keystone of most legal arrangements for dealing with mental incapacity but there are other possibilities you should know about before reaching a decision.

For property and financial matters the possibilities are:

a property and financial affairs LPA; a deputy appointed by the Court of Protection; and an ordinary power of attorney. There is also special provision for 'self-settlement' which enables those in the early stages of degenerative diseases such as Parkinson's and Alzheimer's to create a trust for their own benefit within a favoured tax regime. That option is not covered in this note. Please ask if you would like to know more.

For health, medical and personal welfare decisions the possibilities are:

a health and personal welfare LPA; only exceptionally, a deputy appointed by the Court of Protection; and an advance decision to refuse treatment. The question for each of us is whether we think it is better, in our own particular circumstances, to set up a structure that would cope with the problems of loss of mental capacity, or whether we prefer to leave matters to play out as they do.

This is a very personal decision, and there is no one right answer. It remains true, however, that whether a person plans in advance or not, if they were to lose mental capacity then someone would have to step in to take certain decisions on their behalf. This note can only explain very briefly some options and does not give enough information for you to make an informed decision. To be able to decide which are the right pathways for you, you will need to discuss the implications of the various possibilities in more detail with us.

FINANCIAL AFFAIRS

Unless they have only very modest possessions, anyone who loses mental...