Making the right decision

If someone leaves everything to someone they have just met is it because they have lost mental capacity, or are they just in love?

At what point should you consider whether you are incapable of making your own decisions?

This is a very delicate matter with lots of grey areas.

There are a number of reasons why you might need someone to make decisions for you or act on your behalf.

It could just be temporary. For example,

if you are in hospital and need help with everyday things such as making sure that bills are paid.

Or you may need to make more long-term plans if, for example, you have been diagnosed with dementia.

This is called power of attorney and there are two types – ordinary and lasting.

If you want to give someone full access to make decisions and take action concerning your finances while you still have mental capacity, you can set up an ordinary power of attorney.

This is a legal document giving someone else authority to act on your behalf. It is only valid while you still have mental capacity to make your own decisions about your finances, so that you can keep an eye on what the person making decisions for you (your attorney) is doing.

A lasting power of attorney gives someone you trust the legal authority to make decisions on your behalf, if either you’re unable to in the future or you no longer wish to make decisions for yourself.

Lawyers are being faced with more and more cases of people who have loved ones who have lost their mental capacity, but have not put any lasting power of attorney procedures into place.

Michael Labrum, of Labrums Solicitors, said: “There is an argument over when someone has lost the capacity to make decisions for themselves.

“It’s partly a medical decision and partly a legal one. It is something that can be assessed by a doctor or by an experienced lawyer.

“Whether someone has lost their mental capacity is judged by their ability to remember important details, to assess their importance and to realise their impact, and also take into consideration what an ‘average reasonable person’ would do.”

He said it is not just older people who suffer from general illness, dementia and alzheimer’s.

“Losing capacity can happen quickly and people tend to ignore what is happening to them, which can cause big problems.

“Once a diagnosis has been made, you urgently need to make a valid will or change our current one – provided you understand the changes you are making and the implications of those changes.”

The attorney, as they are called, can be your spouse, partner, family member or friend.

It is up to you what the attorney can do – whether it is a specific task such as selling your home, or a general power without restrictions.

Michael said: “Decisions need to be made when they are well enough to decide for themselves as there are legal consequences. If someone has lost their mental capacity they can’t write a cheque or sell their home or even enter into a contract.

“I would recommend that people do it when they write a will, and then it is done. It can always be amended, but it has been considered and documented should anything happen. You don’t need to worry about it then in the future.”