Capacity– A Potential Minefield

Capacity– A Potential Minefield

As a panel deputy I manage the financial affairs of numerous elderly clients and I often get asked, to what extent should the client, who has been deemed to lack capacity to manage their financial affairs, be involved in the decision making process of the professional deputy?

I have also been appointed by numerous clients to act as an attorney under their financial lasting powers of attorney.

A deputy/attorney needs to be fully aware and up to date on the rules around capacity. This is no easy task given that different capacity tests exist and most clients, even those who have been deemed to lack capacity as to their financial affairs generally, may still have an element of ‘wavering’ capacity in relation to particular decisions.

In other words, capacity is by no means as black and white as to whether a person has capacity or they do not. A person may lack capacity to make one decision but be perfectly capable of making another.

Even a person detained under the Mental Health Act 1983 may still have capacity to make certain decisions.

The Mental Capacity Act of 2005 makes it clear that a person must be assumed to have capacity unless it is established that he lacks capacity.

Furthermore, a person should be assisted to make as many of their own decisions as possible and not treated as unable to make a decision simply because they make an unwise choice. This can cause particular problems, although the Court of Protection Code of Practice indicates a series of unwise decisions can in itself indicate a lack of capacity to make a decision.

Finally, when making a decision for someone the act or decision taken must always be in that person’s best interests and be the least restrictive of their rights and freedoms.

A deputy/attorney should be familiar with these provisions and even when a client has been deemed to be lacking general capacity in relation to their financial affairs, it is still imperative that steps are taken to consult and discuss at least major decisions with the client.

A time may come when a deputy/attorney needs to make a final decision and when doing this they should proceed with caution, especially if the decision is in any way different to what the client and family’s stated preference may be.

By way of an example I recently dealt with the sale of a client’s property where the client had been a resident in a care home for 3 years and the house had fallen into a state of disrepair.

Her view was that the care home stay was temporary (despite it being abundantly clear that she was unable to look after herself) and that in time she would return home. The house had been deemed unfit for human habitation and having taken steps to determine the costs of restoring the property to a fit state, this was quickly ruled out as unaffordable for the client. Furthermore, the house was uninsured and uninsurable in its current condition.

The family’s view was that they would prefer the house to be retained but were neither willing nor able to provide any funds for its repair.

Following a lengthy consultation with the client, care providers, social services, independent experts and the client’s relatives it was determined that I had to make the decision as the client, having been assisted to make the decision herself and explained the consequences of each decision was unable to fully comprehend or consider the risks involved and that rather than her decision being unwise it was made on the basis of a lack of understanding.

Ultimately the decision was made to sell the property. As the client’s only asset of value it was too big a risk to leave it empty and uninsured.

As can be seen, the role of acting as a deputy or professional attorney is often complex and difficult. Practitioners need to ensure they are up to date with the rules and case law surrounding capacity to make decisions and most importantly of all, fully document and retain notes and records regarding why a particular decision was taken.

In the case of both lay and professional deputies there may be occasions where professional advice or second opinions should be sought and obtained. 

Michael is a partner and head of the Wealth and Estate Planning Team at Bolt Burdon Solicitors in Islington.

As well as being a Court of Protection panel deputy, Michael is a member of Solicitors for the Elderly, the Private Client Section, the Society of Trust and Estate Practitioners (STEP), the Association of Contentious Trust and Probate Specialists (ACTAPS), the Law Society Wills and Inheritance Quality Scheme (WIQS) and the Action on Elder Abuse Charity.

Michael is also a Dementia Friends Champion for the Alzheimer’s Society.

Currently Michael is working towards the highest level tax qualification in the UK being the Chartered Tax Adviser qualification with the Chartered Institute of Taxation (CIOT).

Michael has appeared on Eddie Nestor’s BBC Radio London drive time show talking about the importance of making wills and is a regular speaker for the Alzheimer’s Society, Harrow Carers and at the Alzheimer’s show in Kensington.