Capacity to make decisions

[elacsaplau]

My understanding is that the medical "capacity" test varies depending on the relevant circumstances - like, for example, some could be deemed a Ward of Court and subsequently be deemed to have testamentary capacity.

The HSE guidelines for medical practitioners is....

"Best practice favours a ‘functional’ or decision‐specific approach to defining decision‐making capacity: that capacity is to be judged in relation to a particular decision to be made, at the time it is to be made — in other words it should be issue specific and time specific — and depends upon the ability of an individual to comprehend, reason with and express a choice with regard to information about the specific decision. The ‘functional’ approach recognises that there is a hierarchy of complexity in decisions and also that cognitive deficits are only relevant if they actually impact on decision-making."

My question is whether there is any useful guide as to the test required as one goes through the "hierarchy of complexity".

Take, for example, someone with a stroke and some cognitive impairment.

- Is it possible that he could have the capacity to delegate a specific task to someone (say to collect his pension)…...effectively a power of attorney but be deemed to lack sufficient capacity to put an Enduring Power of Attorney in place?

 

[noproblem]

My mum died a few years ago, over 90 years and her solicitor wanted her to get a letter from her GP saying she was in general good health and knew what she was doing in making decisions, etc. She was making her will. I think there's a name for the particular document, but she went to her GP who gave her a thorough examination and the signed document, charged her €275.00 (I think) Went back to the solicitor and did her business. I don't know if it was compulsory for the lawyer to ask her to do what he asked but i've always felt he was a very wise man in getting her to do it. Some years previous to all this my mum had a stroke and made a good recovery. That's why i'm hoping this may be of some good in answering your question.

 

[elacsaplau]

Thanks noproblem,

Hope your mum is at peace - whatever that means for her and you.


I'll probably need to go to lawyers specialising in this. Just hoping that some legal eagle would like to answer the specific question!

Lawyers, I suppose, were children once....

 

[mf1]

"- Is it possible that he could have the capacity to delegate a specific task to someone (say to collect his pension)…...effectively a power of attorney but be deemed to lack sufficient capacity to put an Enduring Power of Attorney in place?"

See this useful piece on the new Act - when commenced. The problem is that it has not been entirely commenced/ implemented- to the best of my knowledge, we are still operating under the existing regime.

[broken link removed]

On the specific query- I think if there is no capacity to do an EPA, then there is, very likely, no capacity to do a POA.

In practice, it comes down to practical solutions/measures, taken in good time. Set up accounts early on into which pensions can be lodged where trusted family members can access funds.

In my own office, I would have a lot of elderly clients- I've known them for years and I know the families.

If a GP/Geriatrician will confirm capacity and if I'm satisfied , from my own interview, that the person has capacity, I will take their instructions.

However, many financial institutions, for very good reason, will require medical certification and actual , physical presence at the branch by the person to implement a Power of Attorney. They've seen the dodgy stuff too often.

Most solicitors will be very reluctant to try and take instructions from an elderly person that they've never met who has any capacity issues- you only have to read some of the posts on Askaboutmoney about allegations of skullduggery and misappropriation..............

Case by case.

mf

 

[Peanuts20]

Just going through this process with my own Mam at the minute, mind is sound but she is 80% deaf, 70% blind and in a wheelchair so getting her in and out of banks/PO etc to do anything has become a nightmare. Our solicitor is known to us, the GP certified capacity to him and the solicitor called round and talked Mam through everything. He also lined up an EPA that is ready to go if we ever needed it. We specified the bank accounts in scope and he then wrote to each bank himself and retained everything that was signed. He also asked us (myself and sister) to nominate a person known to us and they bought got a registered letter in the post outlining what we had put in place. In effect, he was making sure that Mam knew what she was signing, that we couldn't amend anything ourselves and someone else outside of us knew what was going on. It was very straightforward.

 

[elacsaplau]

MF1,

Thanks for letting me away with my little quote from Charles Lamb! and more especially for your very helpful reply and link. Much appreciated.

Thanks Peanuts - sounds like you've got the PA/EPA bit under control - fair play!