2015 saw dementia and Alzheimer’s as the leading cause of death for the first time at 11.6%.
Largely due to better methods of diagnosis paired with an ageing population, Office for National Statistics (ONS) figures indicate that 61,686 people died from either dementia or Alzheimer’s last year.
Elizabeth McLaren, Head of Life Event Statistics at the ONS, said: “In 2015, dementia and Alzheimer’s disease became the leading cause of death in part because people are simply living longer but also because of improved detection and diagnosis. An updating of the international rules for determining the underlying cause of death is also a factor, with the increase in cases attributed to these conditions accompanied by falls in other causes.”
For those with dementia, as the condition progresses, it is likely that their mental capacity will deteriorate.
Lacking mental capacity means being unable to make a certain decision or take a particular action at a time when a decision or action is needed. The lack of capacity may only be in relation to certain decision making abilities. Although an individual may be able to make everyday decisions, they may lack capacity in regards to more complex matters, such as making a will for example.
Similarly, capacity may change over time resulting in an individual being unable to make a decision at a later point in time. This can be the case where certain illnesses or conditions – such as dementia – impact the person’s memory.
Capacity assessments are important in order for someone’s best interests to be the starting point of any decision needing to made. This philosophy underpins the Mental Capacity Act 2005 (MCA), which provides the legal framework for making decisions on behalf of someone else, should they lack capacity. Without relevant assessments being carried out, powers to make decisions may be removed or given where they should have not been and as a result, decisions are not made in the individual’s best interests.
An assessment is usually due where a person’s behaviour has caused doubt as to whether they possess capacity or somebody else has stated they have concern about the person’s capacity.
This may also be due to an individual being diagnosed with an impairment or disturbance which affects the working of their mind or brain, or it has already been observed that they lack capacity in relation to decision making within their life.
The prominence of dementia and Alzheimer’s, as highlighted in the ONS results, could be this disturbance which impacts the decision making abilities of an individual.
When actually assessing capacity, a two stage test is used. This examines:
- Whether a person has an impairment of the mind or brain which affects the working of the mind and;
- If this is the case, does this impairment render the person unable to make the relevant decision at the particular time it needs to be made.
The ability to make a decision is then also assessed. This considers:
- Whether the person has a general understanding of the decision they need to make and why
- Whether they have a general understanding of the likely consequences of making the decision or not
- Whether they are able to understand, retain, use and weigh up the relevant information
- Whether they are able to communicate the decision
Will writing is heavily linked with decision making, given the often large quantities of choices needing to be made. These choices may also be among the most important someone is to make; distribution of assets built up over a lifetime upon death can often have significant consequences for those left behind. Given the serious and often emotional nature of drafting a will, ensuring the necessary level of capacity is essential. Without this, an individual may risk their assets being distributed in a way which is contrary to their wishes.
Where a will is being written, it is usually necessary for the legal practitioner or solicitor to assess the client’s capacity, however more detailed assessments may be necessary in more complex cases. For example, this may be appropriate where illnesses such as dementia, develop gradually. This can make it more difficult to establish when capacity had become affected. At this point, it may necessary to gain an expert opinion from the medical profession.
Professional involvement may be needed where:
- The decision has serious consequences
- A person challenges the findings of an assessor who believe they lack capacity
- There is a disagreement about a person’s capacity
- There is a conflict of interest between the assessor and the individual
- The individual is expressing different views to different people
- A challenge is made as to whether the individual had capacity at the time of making the decision
- There is alleged abuse surrounding someone manipulating the person who lacks capacity
- Repeated decisions which put the individual in danger or at risk
Professional assistance might be from a GP or specialist where required. Often, a multi-disciplinary approach may be deemed best in order to attain a broader picture.
Professionals should not express a particular opinion without carrying out a proper assessment of the individual’s capability to make the decision. The relevant test of capacity must be applied. Although this can include background information from carers or family, this should not influence the decision of the assessment.
The test for assessing capacity is set out in the MCA 2005. Under this, five statutory principles underpin the legal requirements within the Act, which set out to protect those making decisions and enable them as far as they are able to do so to participate in the decision making process.
The starting point is that a person is assumed to have capacity, unless it is established that they do not. Secondly, a person should not be treated as being unable to make a choice unless all practicable steps to assist them in doing so have been done without success. They should also not be treated as incapable of making a decision simply because it is unwise.
Any decision which is made on behalf of the individual or on behalf of the Act, should be done in their best interests. Prior to such a decision being taken, it must be considered whether it achieves its purpose in the most effective and least restrictive way.
For the challenge of a will where a testator has passed away, assessing their capacity at the time of making the will is slightly different.
The Mental Capacity Act Code of Practice s.4.32 states that: “There are several tests of capacity that have been produced following judgements in court cases (known as common law tests.) “
The first listed in the code is testing the capacity to make a will. The code also states that neither the Act or the common law test is to supersede the other. Which one is used is dependent upon the judge within the case adopting the test they deem most appropriate to the facts.
The long established test for testamentary capacity was set out in the case of Banks v Goodfellow:
“It is essential to the exercise of such a power that a testator
[a] shall understand the nature of the act and its effects;
[b] shall understand the extent of the property of which he is disposing;
[c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object,
[d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
After the introduction of the MCA 2005, there was confusion around which test was appropriate to apply.
In the recent case of Walker v Badmin however, Nicholas Strauss QC suggested that the wording used in the MCA was only intended to allow the court to make decisions in regards to incapable people who were still living as opposed to deceased testators.
Although the tests will usually produce the same result, he stated that they were not guaranteed to do so, due to their differences:
- Under the s.1(2) of the MCA, capacity is assumed unless it proven otherwise.
- Under the common law test, a challenge only needs to raise a ‘real doubt’ for the burden of proof to switch to the those who claim the testator possesses capacity.
- Section 3(1) of the MCA requires all of the information relevant to making the decision to be understood by the individual.
- The common law test does not quite require the same level, which focuses on whether the will is accurately reflective of the testator’s intentions as well as appreciation of the claims which he ought to give effect.
- Under s.3(4) of the MCA, it also states that the information relevant to a decision includes that which relates to the reasonably foreseeable consequences of making or not making the decision concerned.
- The common law test instead purports that this may require too much of a testator in certain cases. For example in Simon v Byford, it was ruled that a lack of ability to understand collateral consequences of a will does not at common law invalidate it.
Capacity is not an issue limited to the testator where wills are concerned. Mental capability of trustees is also of vital importance when it comes to the eventual distribution of assets.
Trustees possess an overriding duty of care to the trust beneficiaries and this requires mental capacity to a reasonable extent. Given the personal nature of the role, it can only be delegated in certain circumstances. This can however be done through trust provisions and should ideally occur as early as possible, prior to losing capacity altogether. There must be at least one corporate trustee or two individual trustees after a dismissal. Where a trustee wishes to resign, this is also the case unless there is a new trustee ready to be appointed at the same time.
Where mental capacity has already been lost, the trustee cannot resign or be dismissed.
Instead, the Trustee Act 1925 applies and a mentally incompetent trustee can usually be replaced without the requirement of court application, under s.36(1). If nobody has been nominated to appoint new trustees or they are unable to act, s.36(1)(b) passes this power to the continuing trustees. It will be necessary for the trustees to arrange a legal adviser to draft removal deeds and replacement of the trustees.
If the mentally incapable trustee is entitled to beneficial interest within the trust property, a court application will be required.
