Legal Matters
Helping People who have difficulty deciding for themselves
I contacted Carol Jennings when the PDSG information booklet came out last year to let her know that quite a few matters which she had written about in the section on “Legal Matters” had changed before the booklet was published. I should have known better – not only has Carol got me to write the piece on legal affairs in the forthcoming revised edition of the booklet, but she also persuaded to give a talk at the AGM and write something for this newsletter.
The internet links all work at the time of writing (4th April 2004) I hope this is helpful to you.
Legal Matters
DISCLAIMER
I have tried to be accurate and up to date in writing this but I accept no responsibility for the consequences of any errors. These notes only apply to England and Wales and is only for general advice. Many problems will need to be considered by a solicitor who has expertise in this field of law (see below). The Scottish Adults with Incapacity Act provides solutions to many matters which cause difficulty in England.
Draft Mental Capacity Bill
Parliament is currently considering new legislation which will make major changes in the legal position of people who lack capacity. The main effect will be to replace Enduring Powers of Attorney (see below) with Lasting Powers of Attorney, which will give holders power to deal with health and welfare matters as well as financial affairs. The Draft Capacity Bill contains proposals to establish a new Court of Protection to adjudicate on decisions where there is no Lasting Power of Attorney; there are also guidelines on what may be reasonably be done without formal legal authority for a person lacking capacity to decide for themselves. Full details are available on the Department of Constitutional Affairs website. (www.dca.gov.uk , follow the links to “legal policy” and then “mental incapacity”). On the same site there are a series of information leaflets outlining the present legal position on incapacity, the guides for people planning for future incapacity and for family and carers are especially helpful.
There is no telephone helpline but copies of the booklets can be obtained from:-
Mental Incapacity Branch,
Family Policy Division 1,
Department of Constitutional Affairs,
56-60 Victoria Street,
London SW1E 6QW
Making a Will
In order to make a valid will the person with dementia needs to understand what assets they have to leave, who might be expected to benefit from the will and be able to make rational choices between potential beneficiaries. If the patient has lost this capacity any existing will is likely to remain valid; alternatively the Court of Protection may be able to make a will on behalf of the person without capacity.
Enduring Powers of Attorney
An Enduring Power of Attorney (EPA) allows a person to appoint someone else to act on their behalf if they should at some future time lose capacity to deal with their financial affairs. For an EPA to be valid the person creating the EPA (the donor) must be aware of the nature and purpose of an EPA but they do not necessarily have to be capable of dealing with their finances unaided. It is helpful to have an EPA completed as soon as possible after a diagnosis has been made. Once the donor has become incapable of handling their money matters the EPA has to be registered with the Public Guardianship Office (PGO). Before being registered the donor and other interested relatives have the opportunity to challenge a finding of incapacity.
It is usual for a solicitor to be involved fairs booklets.
Bank Accounts
A bank mandate is not valid once the person who made it becomes unable to manage their affairs. A joint bank account will also be terminated if one of the signatories loses capacity, the bank can then freeze the account
Getting Legal Advice
For assistance in finding help with legal matters try the two agencies below: -
Jonathan Waite
Consultant Psychiatrist
Queen’s Medical Centre
Nottingham NG7 2UH
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