World Mental Health Day
10 October is World Mental Health Day. Whilst one in four of us will experience issues relating to mental health, it is not a subject that is easy to raise or discuss. However, the pandemic has left us all more vulnerable, and now more than ever people are open to discussing the impact of mental health on our lives.
This is important, because aspects of life we take for granted can become more difficult if you are living with a mental health issue. It is crucial that steps are taken to ensure adequate support is provided. Longmores can advise on what you can do to plan ahead if in future you can’t make decisions for yourself because you lack capacity; how you can support someone in making decisions and protect their welfare, and what to do when plans haven’t been made.
How can I plan for myself?
We can help you choose and appoint suitable attorneys to make financial or health and welfare decisions on your behalf. Generally, an attorney can take any decisions which you would take yourself, and health and welfare attorneys may give or withhold consent to life-sustaining treatment if you give them that power. As a result, care should be taken with the information you provide to your attorneys, and we have extensive experience in tailoring powers of attorney to ensure that your attorneys are able to support you as you would wish.
In certain circumstances, some people may wish to make or have already made an Advance Decision, which relates to the refusal of medical treatment and is legally binding. We can help you ensure that if you also wish to appoint attorneys, you don’t invalidate any part of the Advance Decision.
How do I help make decisions for someone else?
Whether you are acting as an attorney, deputy or friend or relative, the person concerned is assumed to have capacity unless an assessment shows otherwise. In more ordinary situations, friends and family can make this assessment. However, for more difficult or significant decisions, such as making a gift or a Will, any irreversible decision with long-term effects, or if you are uncertain as to how the instructions in an LPA should be carried out, you should seek legal advice before you act, as permission or further direction from the Court of Protection may be required.
How can I provide for someone who lacks capacity?
If you have a child with mental health issues whose welfare you wish to ensure after your death, you should prepare a Will. This will avoid money being left outright to them through intestacy which they cannot manage, or which might jeopardise their benefits. With a Will, the money can be left to trustees, whom you choose, to be responsible for holding the money and using it to benefit the person concerned.
Trusts may also be used by anyone else wanting to protect the welfare of a loved one who is unable to deal with money themselves.
What happens if no plans have been made?
If no attorneys have been appointed, an application can be made to the Court of Protection to appoint a ‘Deputy’. They can make financial decisions for the person lacking mental capacity. However, the Court does not often appoint Deputies for personal decisions, and it is a lengthy and expensive process.
Where medical decisions need to be taken, a health professional may act, and may consider the opinions of those who are close. However, an attorney is ready to speak on your behalf, is aware of your wishes and feelings, and their decision cannot be overridden, so this is a situation best planned for.
Except for certain circumstances where the Court will act, Wills cannot generally be made for people lacking capacity, so again, you should plan for this in advance.
Here to Help
If you would like to start planning and putting some provisions in place, please get in touch with Victoria Wood, Associate Solicitor in the Older and Vulnerable Client Team.
Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.
