News and Insights
15 May 2019
Dementia, including Alzheimer’s, is one of the leading causes of death in the UK. Most of us are likely to have been affected by Dementia either personally, or through people that we know. Living with Dementia can be difficult, particularly because your capacity to make decisions can be affected.
It is worth considering what your legal position would be if you unfortunately suffered from a disease or impairment that affects your thinking ability in the future
Under Jersey Law, you are considered to lack capacity if:
You are unable to make your own decision relating to the matter at hand; because
You suffer from an impairment or a disturbance in the functioning of your mind or brain.
In relation to the above, you are considered to be unable to make your own decision if you cannot:
understand information relevant to the decision;
retain the information for a period, however, short, which is sufficient to make the decision;
use or weigh the information in making the decision;
communicate the decision (whether by speech, sign language or other means).
Information relevant to making a decision includes information about the reasonably foreseeable consequences of making the decision, or of failing to make the decision. It is important to bear in mind that just because you make a decision which those around you do not agree with, or which they may consider to be foolish or unwise, this does not mean that you lack capacity.
If you are found to lack capacity you will, inevitably, need a degree of assistance in dealing with your finances and affairs.
Executing a Lasting Power of Attorney
As long as you retain mental capacity, you can execute a Lasting Power of Attorney (“LPA”). An LPA is a legal document that appoints another person to act on your behalf and to make decisions for you should you become unable to make decisions for yourself in the future. This could be because you suffer from a mental impairment such as Dementia, or are rendered incapable to make a decision due to a temporary (or permanent) condition. There are two types of LPAs, the first relating to property and affairs and the second relating to health and welfare. There is also the framework for a person to make an Advanced Decision to Refuse Medical Treatment (“ADRT”) where decisions can be made relating to life sustaining treatment in the future.
When you make an LPA you have the power and control to either limit, or modify your attorney’s actions. For example, you can choose to allow them to sell or deal with your house or choose not to grant them that power.
What happens if you do not make an LPA and you become unable to make decisions for yourself?
A delegate (previously a ‘curator’) will be appointed by the court to look after your finances and/or health and welfare. After completing the application process, a delegate will appear before the court in order to become appointed. A delegate may not necessarily be a member of your family or one of your friends. The ultimate decision of who to appoint lies with the court. A delegate has specific duties which they must follow. The delegate will have to file an inventory with the court after their appointment, and will be under an obligation to provide an annual plan, which includes accounts for the previous year, their plans for the next financial year and a lengthy report regarding decisions they have made, and will make, in the following year. The legal responsibility for making decisions lies with the delegate, who answers to the court. One of the crucial differences is that whilst you can limit or modify your attorney’s powers in an LPA, there is no framework for you to do this with a delegate and they will be given as much power to transact and deal with your affairs as the court thinks fit. In other words, you will not be able to choose which powers they are given. A separate person can be appointed for health and welfare if needed.
If you would like to decide who will look after your affairs in the future, and how they do so, then an LPA is the best way to proceed. It is important to note that an LPA cannot be signed after you lose capacity. We therefore recommend that clients consider this long before they are likely to suffer from any loss of capacity.
At Viberts, we will be able to help you set up a Lasting Power of Attorney. With the new law in place please contact our Personal law department for further information.