Decision-making and mental capacity

By 24 April 2013the family courts

We at CFLP spend the majority of our time helping our clients work out their financial affairs and their children’s arrangements at the end of their close personal relationships. In most of our cases, the relationship has been between two fully-capable adults who understand what is going on around them and can make informed decisions about what they consider to be the best way forward, with our advice and assistance.

Every now and then, however, this isn’t the case, and one of the people involved may not be able fully to participate in the decision-making process because they are no longer cognitively capable of doing so. We thought we’d look at what happens when one person involved in the breakdown of a relationship either does not have mental capacity, or loses mental capacity part-way through proceedings (for example by having a serious medical event such as a stroke). How then does the law deal with the inevitable decisions that must be made?

The law says mental capacity is about being able to make decisions. A person lacks “capacity” if they cannot do one or more of the following things:

  • understand information given to them;
  • retain that information long enough to be able to make a decision;
  • weigh up the information available to make a decision; or
  • communicate their decision by any possible means.

However, the law does not exclude people who do not fulfil these criteria from the ability to access (or be called to) the court – nor indeed from alternative dispute resolution processes. There are several ways in which the interests of a person who lacks mental capacity can be accommodated within family proceedings.

First among these is by the use of a Power of Attorney. Here we are not concerned with the type of power of attorney that operates, for example, for a temporary period in respect of the signing of an important document. The important type for us family lawyers is known as a Lasting Power of Attorney (LPA). This is a legal document where someone (“the donor”) nominates in advance a trusted friend or relative to look after their affairs if ever they lose mental capacity.

There are two types of LPA: property and finance, and health and welfare. As befits the headings, they give the attorneys powers in different areas of the donor’s life and operate entirely separately.

An LPA is a voluntary appointment made by the donor, and therefore must be drawn up while the donor still has his/her mental ability to grant the power. Obviously, selection of an attorney is of fundamental importance and may be a friend, family member or professional representative; more than one attorney can be appointed, in which case the donor can specify whether they have to work together or if they can take decisions separately. In order to take effect, the LPA must be registered at the Office of the Public Guardian – this can be done at any time after the LPA is drawn up and need not be left until the power is needed. See here for the necessary forms and more information – it is possible to draw up either type of LPA yourself, although the forms are quite complicated.

The LPA does not take effect until the donor of the power loses mental capacity. A professional or other nominee has to certify that this has happened. Then, the donor’s interests become represented by his/her attorneys, who must act in accordance with the donor’s wishes and interests (the donor may have specified some principles in the form). This may include participation in court proceedings if necessary.

An LPA (or, to be precise, two LPAs) should be as essential a part of planning for the future as making a Will, and the two exercises are often undertaken together. However, we often perceive a lack of awareness of the need to ensure someone can take charge of your financial, legal and welfare matters if you are unable to do so yourself. This is particularly unfortunate considering the alternative – what happens if there is no LPA (or its predecessor, an EPA or Enduring Power of Attorney).

If someone loses capacity, and has not signed an LPA (or an EPA), then they come under the remit of the Court of Protection: this is an unusual organisation, half-court and half-administration department. If necessary, it appoints Deputies to make decisions relating to the affairs of those who lack capacity, and these Deputies can be family members or professionals. However, appointment of a Deputy can be a drawn-out, complicated and costly exercise, particularly if family members cannot agree. If a Deputy cannot be found or appointed, then the Official Solicitor can act as a Deputy. This can be very expensive, and the costs of the action need to be guaranteed from the outset.

An Attorney or a Deputy will represent the person lacking capacity in litigation or in an alternative dispute resolution process. They will stand in the shoes of the person whom they represent. It is therefore essential that this person feels able to take decisions which will affect the family’s future. It is not an easy thing to ask somebody to do.

There are limitations as to who can be an Attorney. For example it would clearly not be appropriate for a separating spouse or partner to act; a more distant family member or friend would be a more appropriate choice. It is possible for objections to the choice of attorney to be made in certain circumstances. The Office for Public guardianship is likely to uphold any objections where the other party to a dispute has been appointed, therefore it is clearly worth reviewing your LPA arrangements on a change in relationship circumstances, just as you would with a Will.

If you would like to talk to us about any aspect of powers of attorney or mental capacity issues, do give Adam, Gail, Simon, Sue a call on 01223 443333.