The question of mental capacity comes up a lot in relation to elderly people. This is often a particular concern when individuals have started to show symptoms of a condition such as dementia or Alzheimer’s syndrome.

We often work with clients, or their loved ones, who have realised the necessity of finalising important legal documents such as wills or Lasting Powers of Attorney (LPA) while they are still able to do so.

However, this isn’t the only scenario where capacity may be a concern.

The issue of mental capacity can also be a real concern for younger people with mental health conditions or ongoing medical problems. These individuals are less likely to be legally prepared for a loss of mental capacity, which can make it very difficult for their loved ones to be able to step in and make decisions about their care, should this become necessary.

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When might capacity need to be determined?

One of the most common reasons for mental capacity to be questioned is when an individual decides to make or update a Will or an LPA. A solicitor always needs to be confident that their client has the full mental capacity to be able to do this. In situations where there’s concern about the individual’s capacity, they would need to be assessed by a medical professional.

Of course, making legal documents is not the only time mental capacity is an important consideration. If an individual no longer seems to be able to make decisions in their own best interest, either their family members or professionals who are working closely with them may decide to intervene.

In cases where the individual has an LPA already in place, everyone involved may agree that it’s appropriate for the nominated attorneys to start acting on the individual’s behalf.

If the individual resists this, or if they haven’t made a valid LPA, the concerned parties would need to seek legal advice. A specialist solicitor would be able to help them make an application to the Court of Protection.

The Court of Protection have the power to rule on whether or not an individual is able to make decisions for themselves and, if necessary, who should be trusted with this responsibility on their behalf.

The case of Northamptonshire Healthcare NHS Foundation Trust v AB [2020] EWCOP 40

In August 2020, the Court of Protection ruled on the case of the Northamptonshire Healthcare NHS Foundation Trust v AB. This was an interesting case as AB, the individual involved, was far from elderly.

AB was a 28-year-old woman who’d had anorexia since the age of 13. Her health had very sadly deteriorated to a critical stage where the only treatment available to her was forced tube feeding. AB did not want this treatment. Her local NHS trust had taken the case to the Court of Protection to determine whether AB had the mental capacity to make this decision herself.

Anorexia is a complex condition, which meant this case was far from straight-forward. In many other areas of her life, AB demonstrated the ability to make reliable choices in her own best interest. Indeed, she was considered capable of engaging her own legal counsel, which would not have been possible for someone who lacked mental capacity entirely.

The final ruling in the case was that though AB did have the mental capacity to make decisions in other areas of her life, due to the nature of her condition she did not have the capacity to make decisions about her medical care.

Despite this ruling, the court did make clear that they believed forced tube feeding was not in AB’s best interest. Though this was no doubt a life-saving treatment, it would only work as a method for improving AB’s physical health to the extent where she would be able to engage in counselling to address her beliefs about food and calorie intake. The Court of Protection felt that AB’s anorexia was so deeply advanced and entrenched that this would be ‘unlikely to produce any sustainable benefits.’

How can you protect against the lack of capacity?

It’s not pleasant to have to think about the possibility of no longer being able to reliably make decisions for yourself. However, cases like the one above show that it’s possible for an individual to be legally considered to have lost mental capacity at any age. This may be a particular concern for those who have been diagnosed with an eating disorder or mental health condition that affects their decision-making ability.

Though there may not be any way to prevent the loss of capacity itself, there are things you can do to make the situation easier to manage for you and your loved ones.

An LPA is a legal document that allows you to make clear who you would want to act on your behalf should you no longer be considered able to do so. You can make an LPA to cover either your health treatment and care or your financial affairs (individuals can choose whether to make just one type of LPA or both).

Having an LPA in place would mean that if you were no longer able to make your own choices, a trusted person of your choosing would be able to step in on your behalf as your attorney. The LPA would allow them to do this on a long or short-term basis, depending on the nature of your health condition.

Making an LPA is a reasonably easy process. An experienced solicitor will be able to create a water-tight legal document that will set out who you want to appoint as your attorney or attorneys, and how you expect them to act in your best interests.

How Roche Legal can help

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If you would like guidance about any aspect of mental capacity or if you are concerned about somebody’s ability to make their own decisions, please do not hesitate to get in touch with us.

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