If my mother moves into a care home, does she have to sell her house to fund her care if I’ve lived with her my whole life?
The definition of capacity is complex because certain people can lack capacity to make some decisions, perhaps a complicated financial or legal decision, but may still have capacity to make other decisions, for example to decide what clothes to put on or what food to buy. It is a tricky concept to pin down because although there are certain conditions we may associate with a lack of capacity, including dementia or a severe learning disability, just because a person has one of these conditions does not necessarily mean they lack capacity. Dementia is a particularly interesting example because while people with dementia can be lucid and able to make a specific decision at a certain point, later that same day they may seem incapable of making that same decision.
Capacity must be assessed when establishing whether or not a person has the ability to make a Will, Lasting Power of Attorney or other legal document and is crucial in ensuring the validity of that document. For vulnerable clients such as those in extreme old age, or with dementia or severe learning disabilities this is something to be addressed at the outset of a matter, and experts may have to be consulted to report on whether the client has capacity to make the document they are seeking to create.
When a person has capacity, they have the option of making a Lasting Power of Attorney under which they can appoint an attorney to deal with their health and welfare or property and financial affairs in the event that they lose the capacity to do so themselves. This is the favourable approach, as the person is able to choose who will act as their attorney(s) at a stage where they still have the capacity to make that decision. In the event that a person loses capacity without having made an LPA, the Court of Protection will step in and a Deputy may be appointed to deal with the person who has lost capacity.
The existence of undue influence in situations where there is a question as to capacity is unfortunately not a rarity. Undue influence exists where a relationship between parties has been exploited by one party to gain an unfair advantage, for example somebody coercing an elderly relative into changing their Will in order to benefit themselves. In cases where capacity is in question, the possibility of undue influence having occurred or having the potential to occur is something that must be borne in mind.
In determining whether undue influence is present, a court will assess the quality of the interaction between the support person and the person being supported including signs of fear, aggression, threat, deception or manipulation. So undue influence is more than just persuasion, but it does not always manifest itself in some of the more extreme examples that may spring to mind, which is why it is a difficult concept to define and also why it is incredibly hard to prove. You might suspect undue influence if, for example, someone has made changes to a Will or other legal document that seems surprising or out of character, or not in keeping with a previous pattern or making substantial gifts in which again is not in keeping with a previous history of gifting beyond small gifts on birthdays, Christmas and the like.
With cases involving vulnerable clients whose capacity may be called into question, it is crucial to assess the risk of undue influence, which, by its nature, usually happens behind closed doors. Both those close to these individuals and those giving legal advice should be alive to the possibility that undue influence exists or is at risk of existing, and take steps to tackle this complicated but sadly prevalent area of the law.
If you are concerned about issues relating to capacity or undue influence, we would suggest seeking advice from a solicitor.
Anita Gill is a partner in our Private Client team specialising in Court of Protection work. Anita’s main role is acting as a professional deputy for individuals who have lost the capacity to make their own decisions and are no longer able to manage their property and financial affairs.
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