Here at Headway, we occasionally meet people who, because of a very serious brain injury, lack capacity to make the sort of decisions that most of us take for granted – where to live, how to spend our money etc.
The Court of Protection can make the decision to appoint a person to ‘look after’ someone’s affairs, but it is a cumbersome process. If a family member ‘looks after’ someone’s affairs it usually works well, but sometimes there is a conflict of interest. Would you be generous or mean if you were looking after an elderly relative’s affairs, knowing you would inherit whatever money remains when they die?
If a care provider ‘looks after’ someone’s affairs are they going to recommend services as in someone’s best interest when they will also ‘profit’ from providing those services. In these circumstances it is best to have a neutral third party involved in the decisions. This can sometimes be a lawyer, who may not know the person very well, or an advocate (Onside do a great job in Worcestershire), or a social worker.
One area of the law is under review in respect of Deprivation of Liberty (known as DOLs). This came into force in 2009 and led to many ‘best interests’ meetings about people with dementia who wander – should they be restricted to the home where they live and prevented from going out? Or someone with challenging behaviour – how should they be restrained? Can this person consent to a hospital operation?
So my question to readers is: who would you want to make decisions on your behalf, if you lost your decision making ability through an accident or simply old age?
If you are making a will a good solicitor will ask you this question as you can make a forward plan and appoint a relative or friend to act on your behalf in the event of you loosing capacity.
It’s a serious issue, but not one that many people like to think about.