In recognition of the upcoming Dementia Action Awareness Week from 16th to 22nd May 2023, it could not be a more pertinent time for legal professionals to consider how they can best support their clients who are affected by dementia.
One in three people born in the UK will go on to develop dementia during their lifetime and studies show that 34.5 million people know somebody who is living with dementia in the UK today. So, even if an individual isn’t directly affected by the condition, it is likely that they will be indirectly affected during their lifetime. Therefore, it is essential that legal professionals are alert to any legal and practical issues that may arise when acting for somebody who has dementia. This is particularly the case where the condition may be impacting that person’s ability to make logical and clear decisions.
Ascertaining a client’s capacity to make decisions
There are different tests that legal professionals need to apply when determining whether or not a client has the requisite capacity to make decisions.
Lasting Powers of Attorney
Where acting for a client in relation to Lasting Powers of Attorney, a legal professional needs to ensure that the individual is able to use and understand the information that is presented to them in order to make their decision. They must also be able to communicate the decision they have made. This involves ensuring that the individual understands the power that they would be giving to their chosen attorneys under a Lasting Power of Attorney, as well as ensuring that they understand what the repercussions could be of not putting the document in place.
The Office of the Public Guardian provides guidance as to the minimum information that an individual needs to understand before making a Lasting Power of Attorney. This includes:
- What a Lasting Power of Attorney is and why the client wants to make it
- Who the client is appointing as an attorney and their reasons for doing so
- What powers the client is giving to their attorney(s) under the document
Every Lasting Power of Attorney must be signed by a certificate provider who is confirming that the individual has the requisite capacity to put the document in place, with reference to the above points. If a legal professional does not feel satisfied that the client understands the required information, and therefore feels as though they aren’t able to act as a certificate provider, they ought to consider involving a medical practitioner or other suitably qualified individual to assess the client’s capacity to make a Lasting Power of Attorney.
When acting for a client in relation to their Will, legal professionals need to be satisfied that the individual has testamentary capacity. This involves ensuring that the individual understands:
- a) The nature of the act and the effect of making a Will;
- b) The extent of their estate (i.e., what they own); and
- c) Possible claims that others may make against the estate if they are left out of a Will.
The “golden rule” makes it clear that legal professionals should seek advice from a medical practitioner and should ensure that the signing of the Will is witnessed/approved by a medical practitioner if they do have any doubts as to their client’s capacity to put a Will in place.
Unfortunately, if it is determined that a client lacks the capacity to make decisions themselves, it will be necessary to explore alternative routes to implement estate planning on their behalf. This typically involves making an application to the Court of Protection which can be lengthy and costly. It is important that clients are made aware of this well in advance of them possibly losing capacity in order to relieve pressure on both themselves and their loved ones in the future. To that effect, clients should be encouraged to implement estate planning early on if they want to ensure that, first, their estate can be managed by the people they trust if they do lose capacity in their lifetime and, secondly, that their estate will pass in accordance with their wishes on their death.
Identifying your client’s needs
Even where a legal professional is satisfied as to their client’s capacity, they need to ensure that they accurately identify the client’s needs, particularly if the client is vulnerable. It is essential that a client is supported in making the decisions that they are legally able to make. This may involve adaptation of communication style, for example, where the client has any communication preferences, and being flexible as to how or where the legal services are carried out or provided. It is also important to ensure that any written communication is presented clearly and doesn’t involve complex legal language.
Legal professionals have a legal obligation to make reasonable adjustments for clients where necessary, and they must not charge for making such reasonable adjustments so that their actions do not give rise to discrimination.
When acting for a vulnerable client, a legal professional needs to be alert to the possibility of undue influence, particularly where instructions or information is coming from an intermediary such as a family member. Although the third party may not have any malicious intent, it is important for instructions to be confirmed directly with the client on their own.
Where suspicions arise that a client’s instructions have been provided as a result of coercion or undue influence, a legal professional cannot act until they are satisfied that the instructions accord with the client’s wishes. Principle 7 of the SRA Principles sets out how a legal professional has an overriding interest to protect their client’s best interests.
If, for example, a legal professional suspects that a client is being put under undue influence to make a Lasting Power of Attorney, even if the client has the requisite capacity to put the document in place and understands the purpose and scope of the document, they must not act.
By keeping these things in mind and advising on early implementation of estate planning where appropriate, legal professionals can ensure that they support their clients who are affected by dementia in the best possible way.
Article by Shelby Munn, Trainee Solicitor, and Joe Cobb, Head of the Department of Wills, Trusts and Estate Planning at JMW Solicitors