Dementia and Making Decisions For Others

dementia solicitorIf you are caring for a loved one with dementia, you’ll probably have to start making decisions for them at some point in the future. Many of these decisions can be difficult, and when approaching them from a legal standpoint, these choices can become even more confusing. We’re here to help you through it, and it starts with understanding the laws behind decision-making for those with dementia.

Mental Capacity Act 2005

The Mental Capacity Act (MCA) 2005 was originally designed for professional lawyers. It provides a definitive description of what it means to lack capacity and the rights involved in the situation but knowing it can help your own decisions as well.

It’s crucial to understand whether your loved one has the mental capacity to make a decision for themselves or not. It’s likely that you are already following similar protocols to the MCA without knowing, making adapting to it relatively easy.

It’s important to note that the MCA applies only to England and Wales. Scotland and Northern Ireland have their own laws. The Mental Capacity Act has five key principles:

  1. Presumption of Capacity – All adults have the right to make decisions for themselves unless it can be shown that they are unable to make them. You can’t assume someone can’t make decisions just because they have a particular disability.
  2. Maximising Decision Making Capacity – Everyone should be given all the help and support they need to make a decision before anyone concludes that they can’t make their own decision. For example, some people with learning disabilities find it much easier to understand information that is presented in pictures, rather than lots of words.
  3. Right to be Unwise – Making an unwise or eccentric decision doesn’t automatically mean you lack capacity; people are allowed to make decisions that others might think unwise.
  4. Best interests – Any actions taken or decisions made on behalf of someone who lacks capacity must be done in their best interests, after considering what is known about their preferences. Try to involve the person who lacks capacity as much as possible.
  5. Least Restrictive Option – People who lack capacity should not be restricted unnecessarily; when making decisions for someone else, you need to examine if what you are doing poses the least interference with that person’s freedoms.

The legal body that is responsible for upholding this act is the Court of Protection, and they can decide whether someone is capable of making their own decisions or not. If it results in a legal battle to determine who makes decisions, the Court of Protection are the ones who will settle it.

Although the Mental Capacity Act 2005 is the primary document used to settle these cases, other laws can come into play, especially when the person is deceased.

Lasting Power of Attorney

Though often associated with Wills, Lasting Power of Attorney (LPA) is also used when the person in question lacks mental capacity. It involves appointing someone as an ‘attorney’ to make decisions on your behalf, but can only be created by the person while they still have mental capacity. Therefore, it is something that must be planned in advance: any LPA made without official recognition that the creator has/had mental capacity can and will be disregarded in court.

Romain Coleman can help

Thinking about the future may not be ideal, but it is necessary. In these cases, a specialist dementia and elderly care solicitor can help, one who has expertise in dealing with dementia and capacity issues. At Romain Coleman, we have dedicated dementia and elderly care solicitors ready to assist you in your situation. Our solicitors will help you make ideal legal decisions for your loved one with dementia.

Get in touch on 0208 520 4555 or contact us online to find out more.

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