Preparing for the unthinkable: dementia? Disappearance?

Speakers: Withers LLP: Penny Williams, Julia Abrey, David Stein

Q: How can you prevent incapacitated adults from making decisions against their best interests?
A: This can be difficult. An adult with mental capacity can make a decision even if it is an eccentric one and an eccentric decision may, indeed, not be in that person’s best interests. Sometimes that line between an eccentric capacitated decision and an incapacitated one is hard to see- and the starting point is that a person is to be presumed to have capacity to do something unless it is shown that they do not. A lasting power of attorney (LPA) may help – the donor of the LPA and the attorneys they appoint should work together- not only in deciding what the LPA should say but in how it is likely to be used once it is in place. This may support a donor in relation to the decisions they make.

Q: Is regular substance abuse considered to be linked to loss of capacity?
A: It may be. Simply being drugged or drunk is not necessarily treated as a loss of mental capacity under the Mental Capacity Act 2005 – that requires a disorder of the mind or brain as a result of which a person cannot make a decision. Such a disorder may, however, arise from substance or alcohol abuse.

Q: Can you contest a Will that may have been made by an incapacitated person?
A: A testator needs to have mental capacity to make a will. The MCA 2005 however starts from the presumption that a person wanting to take an action has the capacity to do so. A will can be challenged on the basis that its maker lacked capacity after the person has died. If a concern is raised about capacity to make a will while the maker is still alive, this is likely to be in the context of concerns about their capacity to do other things as well. The Court of Protection has the power under s15 MCA 2005 to make a declaration as to whether a person has or lacks capacity to make a decision- and this would include making a will. If the testator does not have capacity to make a will, the Court also has power to make one for them in appropriate circumstances.

Q: Do you have to make PoAs in all the countries you spent time in?
A: Not necessarily. You would normally require powers of attorney to deal with your assets in particular places. If you spend a lot of time in a country but do not have assets there you may not need a power of attorney. Analysing how powers of attorney work internationally, however, does involve looking at where a person is habitually resident and therefore if you spend a lot of time in a place, it worth looking at how this affects the powers of attorney you have or may be planning to make.

Q: Does the subject of a power of attorney have to agree to having one?
A: In England and Wales a lasting power of attorney (LPA) has to be executed by the maker (donor) and the attorneys they appoint. This is not however necessarily so in other countries however where only the maker of the power may need to sign.