Dementia & Mental Health Law

Let Dementia solicitors Romain Coleman guide you through

Mental Health LawMental health, and more particularly Dementia and Alzheimer’s, can leave you and your loved ones baffled by some of the processes and procedures you come into contact with. We want to explain some of the legal words, phrases and institutions you may hear along the way in relation to mental health law, so you can feel more comfortable with these terms and you are clear about their meaning and application generally, but also can be clear about how they apply to you too.

Some of the most common legal terms associated with mental heath law or places you may come across are:

Court Of Protection

The Court of Protection was set up when the Mental Capacity Act 2005. It is based in London and is usually populated with district judges, like most other courts. Sometimes though if a case is more complex or has a wider impact, High Court judges will sit in the Court of Protection. The court has quite a wide remit. They make decisions and rulings on a number of issues such as:

  • Whether someone has capacity to make decisions themselves
  • Appointing a deputy for someone who lacks capacity so they can make ongoing decisions for them
  • Allowing one off decisions to be made for someone who lacks capacity
  • Hearing emergency applications
  • Being involved in LPA and EPS applications and any objections to these applications
  • Statutory will applications
  • Deprivation of liberty under the Mental Capacity Act 2005

Advanced Decisions

An Advanced Decision allows you to make decisions about your future medical treatment whilst you still have the capacity to do so. This means that once your illness no longer allows you to speak for yourself, your Advance Decision will do so instead. An Advance Decision is a legally binding area of mental health law, under the Mental Capacity Act 2005 but you will need to ensure that it meets the legal requirements. These are:

  • You are over 18
  • You are making it yourself, without any pressure from anyone else
  • State what treatment you do not want to receive and you do not have to use technical medical language either
  • State the circumstances when you do not want the treatment
  • Include a specific statement if you want to refuse life sustaining treatment
  • It is signed and dated and that this signature is witnessed by at least one other person who also signed and dated your Advance Decision
  • You haven’t made an LPA after your Advance Decision and given your attorney the right to make those decisions for you.

Deprivation of Liberty

The Mental Capacity Act 2005 has put a number of safeguards in place to ensure that anyone who lacks capacity and who live in a place where they receive care or support are not faced with restrictions on the way they live their lives. A landmark case that went all the way to the Supreme Court in 2014 has now provided a simple test that will decide if there is deprivation of liberty and can now provide people with this added protection.

Lasting Power of Attorney

Lasting Power of Attorney or LPA can help you to make a decision about who you want to help you to make decisions about your life in the future when you lack the capacity in the eyes of the law to do so yourself. There are two types you can make. This first is property and financial affairs and the second is health and welfare.

  • Property and financial affairs – this can be implemented whilst you still have capacity and allows the person you appoint as your attorney to have control over you finances. This means access to your bank accounts, benefits and in addition has the power to sell your property for you. Whilst this seems like a lot of control, it is particularly important where Dementia and Alzheimer’s is concerned.
  • Health and welfare – this LPA can only come into force once you lack capacity and this governs your medical treatment, day to day life, who looks after you and even what you wear and eat. You do not need to include life-sustaining permissions in an LPA as you can simply make an Advance Decision instead, leaving that control with you.

Enduring Power of Attorney

An Enduring Power of Attorney or EPA was replaced by LPAs in 2007, however as long as your EPA was made and signed before 1 October 2007, it is still valid. You do need to register an EPA and if you using it now without it being registered, that is OK. However, once you lack the capacity to make decisions yourself, the EPA must be registered or else your attorney cannot act for you.

In addition, EPAs only cover financial and property affairs, not health and welfare so you may consider setting up an LPA too.

Statutory Will

Making a Will allows you to let your voice be heard when you die but if you are affected by Dementia or Alzheimer’s you may lack capacity in the eyes of the law, meaning you cannot make a Will. In these circumstances, a statutory Will can be made by applying to the Court of Protection. There are a number of processes to follow and you may have to attend a hearing at the Court of Protection if they request one.

Contact Us Today For Help & Support

Mental health Law can be confusing but we can assist you with any of these legal issues, so please do get in touch with our experienced team. You can call on 0208 520 4555 or 0800 056 0346 or if you prefer to go online, email or fill in our Free Enquiry form.