New STEP research on loss of mental capacity

STEP continues to focus on the significant issues that surround loss of capacity particularly in light of a recent report stating that dementia cases are set to triple by 2050. Therefore supported by the Alzheimer’s Society, we wanted to determine the impact of the increasing numbers of capacity-related issues experienced by members and their clients.

To address these questions, we conducted a research survey.

The Survey

The survey was sent to STEP members globally in June/July 2023 and received 756 responses from respondents in 44 countries. The survey responses provided a wealth of insight, which is set out in the report[1] but can be summarised in the headings below.

Key Findings

  1. Capacity issues and requests for advice on the issues have been increasing and will continue to increase.
  2. The ageing population demographic is the primary reason for this increase.
  3. Financial abuse is increasing. It is most prevalent when there is uncertainty about whether a person lacks the mental capacity to make a decision or when a representative is exercising their authority on behalf of the incapable person.
  4. Capacity is a complex issue for practitioners, service providers and families. Although the lasting/enduring power of attorney (LPA/EPA) is an important legal tool for planning for future incapacity, there are barriers and issues to be addressed locally and through policy and legislation.
  5. There is a demand for cross-border recognition and portability of LPA/EPA powers.

The report makes three key recommendations, all of which require collaboration with legal associations, governmental and nongovernmental organisations, charities, financial institutions and health care professionals to formulate better and more universally accepted and applicable policy.

  1. Ensure global legislation is robust and consistent – We are calling on all jurisdictions globally to implement robust and consistent legal frameworks for safeguarding the financial affairs of incapable clients through powers of representation.
  2. Safeguard against abuse – STEP will work to raise awareness of the risks among all stakeholders to ensure these are fully understood and addressed in legislation and practice globally.
  3. Educate about capacity and associated planning – More needs to be done to educate all stakeholders on issues related to mental capacity and associated planning. STEP can play a vital role in this, from raising public and policymaker awareness about the issues and the need for planning, to working with financial institutions and utility companies to identify and resolve their challenges, as well as supporting practitioners and allied professionals to provide education and guidance to build their knowledge in this area.

To address some of these issues STEP is in the process of producing a STEP Global Representative Power (the GRP)[2]: a template and a benchmark for a power of attorney that will be globally recognised and portable across borders. It will be a template that jurisdictions can look to when seeking/initiating new legislation where it fails to exist, or reviewing existing provisions for efficiency, effectiveness and best practice. We look forward to providing further information in due course.

Written by Emily Deane TEP, Technical Counsel & Head of Government Affairs

Read more stories

Join over 6,000 wills and probate practitioners – Check back daily for all the latest news, views, insights and best practice and sign up to our e-newsletter to receive our weekly round up every Friday morning. 

You’ll receive the latest updates, analysis, and best practice straight to your inbox.