I have a patient with vascular dementia. At his best he understands the pros and cons of an LPA. He even noted that his daughter would not be a good choice, because she would give in to his demands. At times he is a lot more impaired than this. Subsequent to assessing his understanding of LPA’s I was asked to assess his understanding of his finances, as his wife is struggling to pay rent and bills, and he normally contributes something to this. On the day I asked him about this, his memory was worse than ever, and he did not know who he banked with, how much money he had coming in or going out. He had no recollection of the support he normally provides to the household, nor was he able to demonstrate any understanding of his wife’s financial position. He was willing at that time, to provide any support needed, but he has, in recent days, often been unwilling to do this when his wife has addressed the concern.
I haven’t previously checked his capacity on finances, but it seems to be that his understanding of finances has probably always been lacking. Is it unusual for someone to have capacity to sign an LPA but not have capacity to manage finances? I realise they are two different entities, but this would mean signing something meant to defer to the point at which capacity to manage finances is lost, when in fact that point has already been reached.
It may be that the family have to go down the Court of protection route, but they will be waiting months and the problem in the meantime; the wife has not the finances to afford the bare essentials. What can she do? How do we ascertain what is reasonable when it comes to him giving her some money, when his capacity is impaired?
Hi Andrew, this may be helpful Capacity to execute a Lasting Power of Attorney (LPA) | Hill Dickinson:
Having regard to Sections 1-3 of the MCA, the Court held that the ‘relevant information’ in relation to the execution of an LPA is:
- The effect of the LPA;
- Who the attorneys’ are;
- The scope of the attorneys’ powers and that the MCA restricts the exercise of their powers;
- When the attorneys can exercise those powers, including the need for the LPA to be executed before it is effective;
- The scope of the assets the attorneys can deal with under the LPA;
- The power of the donor to revoke the LPA when he has capacity to do so; and
- The pros and cons of executing the particular LPA and of not doing so.
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The MHLO page on the case summarised above – The Public Guardian v RI [2022] EWCOP 22 – contains links to the judgment on BAILII and to the 39 Essex Chambers summary.
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