Dementia has overtaken heart disease as the nation’s leading cause of death, and yet so many of us still misunderstand its causes, symptoms, treatments and repercussions. One of the most widely held misconception around the disease, is that someone who has been diagnosed with dementia will have instantly lost mental capacity. In reality, it is a progressive disease, whereby the function of the brain will be eroded over time. Some people will live well for many years from initial diagnosis, whereas others will decline quickly within months.
As a solicitor working mostly with elderly people, I often meet clients who either have been formally diagnosed with dementia or are exhibiting signs of dementia. With all new clients, including those with dementia, it’s necessary to ensure that they have the requisite mental capacity to give instructions.
The good starting point for all solicitors working in this area of the law, is the Mental Capacity Act 2005, which sets out the following test for mental capacity in relation to decision making.
Assessing ability to make a decision:
- Does the person have a general understanding of what decision they need to make and why they need to make it?
- Does the person have a general understanding of the likely consequences of making, or not making, this decision?
- Is the person able to understand, retain, use and weigh up the information relevant to this decision?
- Can the person communicate their decision (by talking, using sign language or any other means)? Would the services of a professional (such as a speech and language therapist) be helpful?
As solicitors, we are not medical experts, and we are certainly not qualified to diagnose dementia. However, we do, on a day to day basis, have to assess whether someone has sufficient mental capacity to make a Will or a Lasting Power of Attorney, amongst other things.
I tend to assess capacity by engaging in an informal chat, which is likely to include questions about their family, former work and basic personal information. If there is any doubt about capacity, we often require a capacity report, which is obtained from a medical expert, such as the client’s G.P.
The most important thing to remember about dementia is that if you or a loved one have been diagnosed then do not delay in reviewing your Will and making a Lasting Power of Attorney. As Solicitors, we all too often see potential clients who have no Lasting Power of Attorney but no longer have the capacity to make one.
If you need further support and information about anything related to dementia, do contact the Alzheimer’s Society: https://www.alzheimers.org.uk/
Solicitor at King Street Solicitors
Andrew Gullett is an experienced solicitor at King Street Solicitors in Wakefield, specialising in older client law.
More information is available at http://www.kingstreetsolicitors.co.uk/wills-probate/meet-our-wills-and-probate-team/
Tel: 01924 332395