When someone begins to lose mental capacity, it can quickly create emotional and practical challenges for families. Decisions about care, finances, and wellbeing become more complicated - and often, costly - if the right legal documents aren’t in place.
This story about John and his family shows just how important it is to have Enduring Powers of Attorney (EPAs) established early, before capacity declines.
John’s Capacity Begins To Decline.
John lived alone and was starting to show signs that his mental capacity was deteriorating. John’s son, David and his wife, Claire, were mostly responsible for John’s care. David had an older sister, Jane, who was a financial advisor, and while she did visit John, it was infrequent as they did not have a close relationship.
Seeking Medical And Legal Advice.
David and Claire could see John’s health declining and were concerned that it was getting to the point where he could no longer look after himself. When they had popped in over the weekend with some groceries for him, the element had been switched on the stove top and there was a tea towel dangerously close by. Claire was concerned that John might set the house on fire. David and Claire decided to start looking at some rest homes. They took John to see his GP to get him assessed. The doctor said that he was concerned that John was at the point where his capacity had diminished to the extent that he couldn’t make decisions regarding his own care. He recommended that John go and see a geriatrician to have his capacity formally assessed.
Capacity Assessment Confirms Concerns.
After looking at a few rest homes, David and Claire also realised that John would need to have in place enduring powers of attorney to be able to move into care. They contacted John’s lawyer who said he hadn’t seen John for years, and while he had a very old will, he had never put in place powers of attorney. If the geriatrician assessed him as having capacity to put in place EPAs, then the lawyer could prepare those. If not, then David would need to make an application to the court to be appointed John’s welfare guardian and property manager. The lawyer warned that this could be a lengthy process, with the courts currently being busy and the costs involved would be significant.
The geriatrician’s report categorically said that John had no capacity to be making decisions regarding his care, and that he could no longer manage his financial affairs. David went back to the lawyer and asked him to prepare the application to the court. The lawyer advised that the court would also appoint a lawyer for John. That lawyer would go and visit John to see how much he understood about David being appointed to manage his affairs.
Family Disagreement Over Financial Management.
In the meantime, David thought he better let Jane know what was going on. Jane responded, saying that she thought she would be a better person to look after John’s financial affairs as she was a financial advisor. David explained that as he had been helping John for many years with his finances, he was probably a better person as he already had a good understanding of how things worked. Jane went to see her own lawyer and put an application in, opposing David’s appointment and saying while he was fine to be John’s welfare guardian, she thought she should be the property manager.
Why Having An EPA In Place Matters
How much simpler it would have been if John had put in place enduring powers of attorney while he still had capacity. The cost of doing so is insignificant in comparison to a court application, especially where an application may be opposed. It would also have meant that John could have appointed who he wanted to have manage his affairs, without the risk that a judge might think that one sibling or the other was better to manage his financial affairs.
Everyone should have enduring powers of attorney, regardless of age and stage of life.
It is one of the most important legal documents to have.