Dementia and Decision-making

Dementia is a term used to describe a range of symptoms associated with a progressive deterioration of cognitive functioning. These symptoms, including loss of memory, logical reasoning and attention, together with confusion and communication difficulties, can have a severely detrimental effect on the life of the sufferer and those who love and care for them. 

There are several types of dementia; including Alzheimer's disease (which is the most common form), vascular dementia, frontotemporal dementia and dementia with Lewy bodies, it is also possible to suffer with more than one type of dementia.

The Alzheimer’s Society have recently published (December 2021) some quite shocking statistics:

  • It is estimated that there are currently around 900,000 people with dementia in the UK and this is expected to rise to 1.6 million by 2040.
  • 209,600 people will develop dementia this year, that’s one every three minutes.
  • One in six people over the age of 80 have dementia.
  • 70 per cent of people in care homes have dementia or severe memory problems.
  • There are over 42,000 people under 65 with dementia in the UK.
  • Dementia is one of the main causes of disability later in life, ahead of cancer, cardiovascular disease and stroke. 

As dementia progresses, it is sadly the case that many individuals lose mental capacity to make their own decisions regarding particular aspects of their life, such as managing financial affairs and health and social care.

It is important to note that a person’s mental capacity refers specifically to their capacity to make a particular decision at the time it needs to be made. It is therefore not applicable to simply state that someone has ‘lost mental capacity’, as capacity must be assessed on a decision specific and ongoing basis.

The Mental Capacity Act (MCA) 2005, which came into force on 1 October 2007, provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves.

The MCA 2005 is based on five key Statutory Principles:

Principle one - A person must be assumed to have capacity to make a particular decision unless it is established that they do not. This means that a diagnosis of dementia does not automatically preclude someone from making their own decisions.

Principle two - A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success.

Dementia may affect an individual’s ability to make some decisions, however, they should receive support to make as many decisions as they can. The kind of support required will depend on personal circumstances, the type of decision to be made and the time available to make the decision. Those supporting the individual should try to find the most helpful way to communicate, perhaps explaining the information in a different way or breaking it down into smaller chunks.

Principle three - A person who makes a decision that others think is unwise should not automatically be labelled as lacking capacity to make a decision. 

Principle four - An act done or decision made on behalf of someone who lacks capacity must be done, or made, in their best interests.

Principle five - Any act done, or any decision made on behalf of someone who lacks capacity, should be an option that is least restrictive of their basic rights and freedoms – as long as it is still in their best interests.

A person with dementia may have capacity to make some decisions, such as what to wear or what to eat, but may lack capacity to make more complex decisions, such as managing their financial affairs.

If an individual lacks capacity to manage their financial affairs, then someone else will need to make these decisions for them, however, they can only do so if they have the required legal authority. Despite popular belief, an individual’s ‘next of kin’ does not automatically acquire this legal authority.

With the required mental capacity, an individual can make and register Lasting Powers of Attorney for property and financial affairs and also health & welfare, appointing attorneys to act on their behalf, should there be a need to do so in the future.

However, in the event that an individual with dementia loses capacity to make some decisions relating to their financial affairs, as assessed by a medical professional, then they will be unable to make a Lasting Power of Attorney and it therefore becomes extremely difficult to help them manage their finances. In these circumstances, the required legal authority to act on their behalf comes from being appointed as their deputy via a deputyship application to the Court of Protection.

Family members or close friends can be appointed as ‘lay deputies’ or if there is no-one suitable or able to act then a ’professional Deputy’ can be appointed.

An appointed deputy has wide ranging duties and responsibilities, including reporting requirements, and a deputy must continue to follow the five key principles as set out in the MCA 2005. If making decisions on behalf of the incapacitated person (referred to as ‘P’) the deputy must have particular regard to principles four and five i.e. they must always act in P’s best interests and choose the least restrictive option where possible.

The requirement to apply for a deputyship for someone with dementia can often indicate that the people caring for them have reached a crisis point, and/or there has been a deterioration in their loved one’s mental health. Consequently this can be an extremely stressful and emotionally challenging time for all involved.

The Court of Protection Team at Lanyon Bowdler has a wealth of experience of dealing with Court of Protection applications, advising deputies regarding their roles and responsibilities, and we are also able to offer a professional deputyship service.  

We understand how complex and overwhelming the whole deputyship application process can be and so if any of the issues raised above are relevant to you or someone you care for then please do not hesitate to get in touch with our Court of Protection Team for further information, advice and support.