How to make decisions for someone with advanced dementia

When your loved one was first diagnosed with dementia, they may not have anticipated their condition deteriorating so quickly. Perhaps they never expected to make complex legal or financial decisions in the future. Unfortunately, there may come a time when they have to make a serious decision but don’t have the mental capacity to do so anymore.

When it’s suspected that someone is no longer able to make decisions for themselves, the first step is to assess their mental capacity. Following this, further steps can be taken if it’s established that they don’t have mental capacity; you may need to appoint a deputy or write a Statutory Will. Here are some of the issues that have to be considered when a person with dementia is not capable of making decisions for themselves.

Assessing mental capacity

The Mental Capacity Act 2005 (MCA) protects people who can’t make decisions for themselves. Section 1 of the Act outlines what it means to not have mental capacity:

  • A person must be assumed to have capacity unless it is established that they lack capacity.
  • A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
  • A person is not to be treated as unable to make a decision simply because they make an unwise decision.
  • An act done or decision made, under this act for or on behalf of a person who lacks capacity, must be done or made in their best interests.
  • Before the act is done or the decision made, regard must be had to whether this can be achieved in a less restrictive way.

The MCA says a person cannot make a decision for themselves when they are unable to either understand the decision, retain information relevant to the decision, or use that information as part of the decision-making process.

When assessing the mental capacity of a person with dementia, it should not be assumed that their condition means they can’t make decisions for themselves. They should also not have to prove their mental capacity; the onus is always on other people to demonstrate conclusively that they don’t.

Court of Protection Deputyship

If a person with dementia has not arranged a Lasting Power of Attorney, they will not be able to do so if they’ve lost mental capacity. Instead a family member, carer, solicitor or other individual can make an application to the Court of Protection for the appointment of one or more deputies. In the case of none of the above being available or willing to become a deputy, the Court of Protection may appoint a panel deputy, selected from a list of approved charities and law firms. Deputies have a similar function to an attorney, except they are appointed by the Court rather than by the person who lacks capacity. There are two kinds of deputies:

  • Property and financial affairs
  • Personal welfare

The deputy is responsible for making decisions on behalf of the person who lacks mental capacity, and must submit a report every year detailing each decision they’ve made. There are limits on what a deputy can do; for example, they can’t stop the person they’re representing from receiving life-saving treatment, or write a Will for them.

The Office of the Public Guardian

If you are appointed to be a deputy or attorney of a person who lacks mental capacity, the Office of the Public Guardian (OPG) will supervise your decisions and ensure you are carrying out tasks correctly. The OPG is responsible for protecting people in England and Wales who may not have the mental capacity to make certain decisions for themselves, and assisting them with making decisions about their future.

The main responsibilities of the OPG are:

  • Registering Lasting Powers of Attorney
  • Maintaining a register of deputies and people with Lasting Powers of Attorney
  • Supervising deputies to ensure they comply with the Mental Capacity Act 2005
  • Investigating concerns about attorneys or deputies

Making a Statutory Will

Statutory Wills are arranged when someone who has lost mental capacity doesn’t have a Will in place, or needs to change their Will. This is usually done when the person’s estate is likely to be distributed to someone they wouldn’t want it to go to, or their circumstances have changed. For example, if they already had a Will but the main beneficiary has passed away, it should be changed to reflect this.
Applying for a Statutory Will is understandably a complicated process. You must be able to prove the person in question is unable to understand any of the following:

  • What making or changing a will means
  • How much money they have or what property they own
  • How making or changing a will might affect the people they know (either those mentioned in the will or those left out)

You will also need to submit details of their assets, accounts, a family tree and any documents like deputyship orders or LPAs. Always consult a solicitor before you submit your application, as if you make any mistakes you must still pay the fees regardless. The application for a Statutory Will costs £385, plus £500 if the Court calls a hearing.

Contact Foys for dementia law advice

It’s common for people to put off legal matters like writing Wills or arranging Lasting Power of Attorney. Unfortunately, when this happens, and the person who needs to make decisions has lost the capacity to do so, it can cause a range of issues for themselves and their family. It can also leave them vulnerable to abuse or fraud by outsiders who wish to take advantage.

Foys Solicitors can help you with any legal arrangements you need to make if you suspect your loved one lacks mental capacity.

If you need legal advice regarding any aspects of dementia, use our Online Form to contact our Protection of the Elderly Team.
Alternatively, contact your local Foys Solicitors office:

  • Doncaster – 01302 327 136
  • Retford – 01777 703 100
  • Worksop – 01909 500 511
  • Clowne – 01246 810 050
  • Rotherham – 01709 375 561
  • Sheffield (Waterthorpe) – 0114 251 1702
  • Sheffield (Chapeltown) – 0114 246 7609

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