But I Thought I Could Make That Decision...

July 27, 2017

That’s what many clients say to me when someone they love, or provide care for, loses the ability to make decisions in relation to their own finances or personal welfare. Of course, that loss of ability to make decisions could be temporary, for instance if you are knocked unconscious, or for the indefinite future like a coma, even permanent such as with a disease like dementia.


In healthcare speak, losing that ability is known as lacking mental capacity. Beware not to confuse lacking mental capacity with making an unwise decision. We’re all allowed to make decisions that others might consider to be unwise, and the law works on the principle that we are all assumed to have capacity to make our own decisions if we are given enough information, time and support. Capacity is assessed on a decision by decision basis. For example, you might have capacity to decide whether you want to eat or drink something, but lack capacity to decide whether you want to be cared for in hospital, or a care home, or even refuse life sustaining treatment.


So in reality what does happen? The person, or people, you thought would be able to make those important decisions for you, perhaps access your assets or manage your financial affairs and welfare needs, would have to apply to the Court of Protection, even if that person is your spouse or partner. That can not only be very expensive, but it can also take several months. The Court will require medical evidence which could mean further delays.  In the meantime, a health care professional or social worker will make a decision on your behalf, and whilst they should speak to your family and those close to you, they are not legally bound to follow what they say.


With a Lasting Power of Attorney (LPA) you can appoint a single attorney, or more if you wish, to make certain decisions on your behalf when and if you lose capacity. In fact, an LPA can even be used when you do have capacity to make your own decisions, but want help to do so. The choice is yours. Once your LPA is registered you can rest assured that the people you trust will be able to make decisions for you when you need them to.


Final thought, make sure you get the right legal advice before you do anything, it could save you a lot of time and money. After all, if you needed to have a tooth removed you wouldn’t consider pulling it out yourself, even if you had a really good pair of pliers!


This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.


Nino Cuffaro
079 77 30 77 30

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