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At our ﬁrst Tea Talk and Cake event, I gave a talk about the effects of dementia or loss of mental capacity upon your ability to make legal decisions. I thought it would be helpful to pass on this information here.
In the ﬁrst instance, it is important for us as Wills and Probate Solicitors to be able to identify any lack of mental capacity that you or your relative may have. We understand that many people do not wish to acknowledge to themselves or others that there is an issue. We know that this can be a frightening and worrying time. However, if we are informed that you or your relative have concerns about any type of memory loss then we can protect you legally.
The Mental Capacity Act makes it clear that just because a person lacks full mental capacity, this does not mean that they are incapable of making decisions about their life. This includes the ability to transfer property, make a Lasting Power of Attorney or make a will.
As long as you or your friend or relative understand what you are doing when you sign legal documents, then the statute supports you in your wish to do so. The main question is to determine if you understand what you are doing.
At Emmersons Solicitors, our staff have become Dementia Friends. This has helped us to understand things from the perspective of our clients. We also spend a lot of time on in-house training for staff. How can we recognise if a client may not understand what they are purportedly asking us to do on their behalf?
Silence is a good indicator; a client may attend our ofﬁce with a helpful relative. We notice that the relative does all the talking, the client agrees with everything that is being said. Or a client may answer yes/no answers but not put forward ideas.
We have to ask what is in it for the helpful relative or friend. In 99% of cases they are giving up their time to help someone in genuine need. However, we have to be alert and on the lookout for the person who is trying to take advantage of our client.
We will always ask to see a client alone for part of the interview, we will ask open questions that require a detailed answer. Many clients and/or their relatives advise us at the outset if there has been a diagnosis of Dementia, Parkinsons or if our client has had a stroke leading to some memory loss. Our task is to determine if our client understands the consequences of making a will or a Lasting Power of Attorney. However, we are not medically trained. Therefore we will seek permission to contact our client’s doctor and ask them to complete a form setting out their view.
It is important that we take such steps. When teaching our staff I regularly refer to a mythical brother who never helps his parents, who doesn’t visit, who lives in Middlesbrough and who will be the ﬁrst person to accuse his siblings of ﬁnancial skulduggery! If you are the person trying to help your parents then you need to be protected just as much as your parents.
An extreme, but true, example was the case of Mrs B. She had just lost her husband and she had also been diagnosed with early Dementia. She had a son who lived in rented accommodation but who was willing to give up his home to move in with his mother. The son brought his mother to our ofﬁce and advised us that she wanted to transfer the ownership of her own home to her son. This was important to her, he said, because he was giving up his home and didn’t want to become homeless in the event that his mother needed to go into a specialist care unit. Both thought that she would be forced to sell her home to pay for care.
I was concerned about this. What if the son later decided he didn’t want to look after his mother but she wanted to continue to live in what was now his home? What if the son was declared bankrupt, his trustee in bankruptcy would claim the house, mum would have no legal interest and would ﬁnd herself homeless. What if the son married and then divorced, his wife could seek an interest in the property?
I contacted the Ofﬁce of The Public Guardian and set out my concerns. On two separate occasions my client had made her wishes very clear. She trusted her son to look after her and as far as she was concerned this way she could provide a long term home for him whilst being able to remain at home cared for by her son. I was advised that, despite the risks, and even though my client had Dementia, she was capable of giving clear instructions, so her wishes should be followed. I also contacted the lady’s GP who conﬁrmed that, in his opinion, she understood what she was doing.
Notably, having the right person appointed as your attorney can mean that decisions can be taken at the right time regarding the sale of your home. Your attorney can protect your money from unscrupulous sales people. I was informed by Age UK recently that it is necessary to warn everyone about pension scams. Vulnerable people are being persuaded to cash in their pensions and invest in some very dodgy deals. Your attorney could oversee any investment decisions.
Ultimately my message is that you should seek help, rather than avoid the issue, if you have any level of mental incapacity. Do not be afraid.
Author: Jacqueline Emmerson