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Supporting a loved one with capacity issues can be very challenging, as well as emotionally distressing. In this article we explore some practical considerations and offer tips and advice to support a loved one in these circumstances.
Understanding Capacity Issues
- If, due to injury, illness of disability, a person’s ability to understand and make decisions for themselves is impaired they are deemed to lack capacity.
- Capacity is time and “decision-specific”, this means that at certain times a person may have capacity during more lucid moments, and at other times they may not and display restlessness or agitation (often known as “sundowning”).
- If a person is unable to make decisions for themselves they cannot:
- Understand information relevant to the decision;
- Retain information relevant to the decision;
- Weigh up the advantages and disadvantages of their decision; and
- Communicate their decision.
- The Mental Capacity Act 2005 (MCA) in England & Wales provides a framework, with the following core principles:
- A presumption of capacity unless proven otherwise.
- Supporting decision-making before assuming incapacity.
- The right to make unwise decisions.
- Acting in the person’s best interests if they lack capacity.
- Choosing the least restrictive option.
Best Interests
- When a person cannot make a decision for themselves it must be made in their “best interests”. The law requires the persons present wishes and feelings, as well as those expressed when they did have capacity to be considered alongside the views of their family, loved ones and carers.
- The law promotes the concept of providing support which is sensitive and tailored to the individual concerned, promoting their wellbeing. Just because a person cannot make a decision for themselves does not mean that their wishes and feelings should be ignored, in fact these should be at the heart of decision making.
Communication & Emotional Support
It is important to avoid assuming that a person isn’t able to contribute or understand what is happening, and ensure they are enabled to do things for themselves where possible in order to maintain their impudence, dignity, confidence and self-esteem. Here are some tips that will support them to do this:
- Patience & Clear Communication: Use simple language, visuals, or written notes. Break down tasks into smaller steps.
- Involve Them in Decisions: Even if capacity is lacking, encourage their input. Try not to speak on their behalf, complete their sentences or allow others to exclude them.
- Respect Their Dignity: Give them plenty of time, remove distractions like background noise and maintain eye contact. Also consider other means of communication such as gestures, eye contact and facial expressions.
- Promote routines & familiar activities: This will help reduce confusion and anxiety.
Legal & Practical Considerations
- Lasting Power of Attorney (LPA): If a person is aware that they may at some point lose capacity, setting up LPAs for health and welfare and property and finance can ensure decisions are made by a trusted person.
- Deputyship: If capacity is lost without an LPA, applying to the Court of Protection for a deputyship will allow their affairs to be managed on their behalf.
- Best Interests Meetings: If disputes arise, professionals can hold meetings with family members, carers and loved ones to make decisions regarding issues such as care arrangements and financial matters.
- Care Planning: Discuss and document preferences early to avoid confusion or distress at a later date.
Financial & Property Management
- Banking Access: An Attorney or Deputy will be able to access and manage a person’s finance on their behalf, they must ensure that they keep their own finances separate.
- Court of Protection Orders: Some decisions may require authority from the Court of Protection, for example, selling and buying property, making large financial gifts, executing a Statutory Will.
Health & Social Care Support
- Capacity Assessments: If in doubt, a medical professional can assess decision-making abilities, applying the test set out above. As capacity is decision-specific the information relevant to the decision will vary according to the decision in question.
- Care Needs Assessment: Social services can determine and person’s care needs by carrying out an assessment under Section 9 of the Care Act 2014. They put together a care plan, assist with implementing care arrangements and also consider eligibility for public funding where required.
- Advocacy Services: Independent advocates (e.g., IMCAs) can help if decisions involve social care.
FURTHER INFORMATION
If you have any questions regarding this blog, please contact Jemma Garside in our Private Client team.
About the author
Jemma Garside is a Partner in the Private Client team specialising in Court of Protection work.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
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