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Mental Capacity

Mental capacity is usually referred to various mental skills like memory, logic, and the ability to calculate or make decisions etc that one uses in everyday life. It is extremely difficult to contemplate about losing our ability to do our things on our own or taking our own decisions. However, it is a fact that one can lose their capacity to deal with things at any period of their lives, through accident or permanent or long-lasting illness, and particularly in old age.

If you experience mental distress or are worried about the chances of losing your ability to make decisions, then you should know that law have several provisions like the Mental Capacity Act 2005 and others to help you tackle with this problem.
We can help you achieve a sensitive, practical, and expert solution for capably dealing with this probable situation and advice you on various aspects of the law concerned with incapacity and planning for the future. Always remember, that you have every right to make your own decisions relating to your life.

How important is it to plan for incapacity?
Even if a person is not capable of taking care of their own financial affairs, physically or mentally, then also he has the right make his own decisions. Nobody, including people who are the nearest and dearest ones, automatically attains the right to deal with financial affairs and other matters on their behalf, without their consent.
A person’s inability to take decision can pose real problems at times, when it is of utmost importance for the general welfare of the person that financial matters go on smoothly. Therefore, implementing safeguarding measures will reduce the risk of abuse of vulnerable individuals, which has become too common these days.

Is there a possibility of doing something about this issue now?
Certainly yes, you can consider numerous safeguarding measures, like creating a Lasting Power of Attorney for Property and Affairs.  Commonly known as LPA, this legal document allows you to appoint one or more persons to help you in dealing with your financial matters. The best thing about this power of attorney is that, unlike normal power of attorney that becomes invalid due to mental incapacity, LPA continues to be valid in those circumstances.
Before you get confused, let us make it clear that by making a Lasting Power of Attorney, you won’t be giving away your right to handle your financial matters on your own. The power can be customized depending on the discerning individual requirements and you may include certain restrictions and conditions as per your circumstances. For example, you may specify that you need someone to help you in organising your financial affairs on the practical side.

What about the supervision of my attorney?
The Public Guardian is liable for the monitoring and supervision of all the actions of attorneys.
There is also a provision of calling attorneys to provide explanation for their actions. However, it happens only if someone raises concern about his actions. Therefore, one should never completely rely on this safeguard and it is recommended that one take due care while selecting the attorneys.

What ensues, if I am unable to manage my financial affairs and am without appropriate Power of Attorney in place?
If you have not made a Lasting Power of Attorney or even an old style Enduring Power of Attorney, then don’t worry, you still will be protected and will come under the remit of the Court of Protection (CoP).
It is mandatory that you submit an application in the Court of Protection for the appointment of a Deputy.The Deputy assigned for you will be responsible for managing all your financial affairs on your behalf.
You can select anyone for becoming your Deputy. Therefore, it is not necessary that the person who manages your finances is also the same person whom you selected to act for you.

Can I do something about decisions on my health and welfare as well?
Definitely, you can get a Lasting Power of Attorney made for dealing with the decisions related to your health and welfare. You can appoint someone to deal with decisions concerning your Health and Welfare and at a time when you become incapable of doing that for yourself.

The LPA enables you to nominate one or more people depending on your needs to make decision and act on your behalf.



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