Anticipating and planning for your possible mental incapacity

You may think that, if you lose mental capacity your next-of-kin can simply take over and start looking after your affairs for you. In fact they can’t, unless you have formally given them legal authority to do so, which could leave your affairs in a mess and cause them even more upset and stress at a difficult time.

Yet there are many ways people suddenly and unexpectedly lose mental capacity, whatever their age. As well as serious learning disabilities and the common problems associated with dementia and Alzheimer’s Disease, you could suffer an injury in a traffic or sporting incident, get an illness that makes you confused or delirious, fail to come round for a period after an accident or operation or suffer problems because of alcohol or drugs.

The legal test for mental incapacity is whether you can make decisions – whether you can understand the nature of the decision you are making and its consequences, given the choices available to you at the time. The test is issue and time specific. It’s not whether you make good (sensible) or bad (unwise) decisions. Rather, it’s a question of the process you use to make decisions. What’s relevant is whether you can understand information relevant to the particular decision, retain and use it, and communicate your decision, with relevant support and help.

One key step you have been able to take historically is to sign an Enduring Power of Attorney. This gives the person you appoint as your attorney (which doesn’t have to be next-of-kin – it can be anyone you trust enough) authority to make decisions for you about your affairs. If you do become mentally incapable, they are legally entitled to start looking after you very quickly.

But the range of options open to you looks set to widen. New laws will update and reform the rules for Enduring Powers of Attorney – and you will be able to revoke any Power you have already made, and make a new one under the new rules when they come in.

You will also be able to make a range of legally-binding agreements to help with decisions about your welfare, and property and affairs, where you lack mental capacity to make decisions without such help – look out for terms such as Assisted Decision-Making, Co-Decision-Making, Decision-Making Representatives and Advance Healthcare Directives (where you set rules now for the type of medical treatment and procedures you are not prepared to undergo, in case you are unable to refuse consent at the time).

If you’ve made a Power of Attorney, and want to know whether the new rules mean you should change it, or you haven’t even thought about it yet, or you want to know more about the other option open to you under the new rules, get in touch. The more you plan for these things now the less stress and upset for you and your family if the worst comes to the worst.

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