Making legal provisions in advance is a wise move

Making legal provisions in advance is a wise move
Medical Matters

 

An ageing population has resulted in a major increase in the number of older adults who have significant cognitive impairment. While the incidence of dementia at any given age has not changed much in recent decades, the number of people affected has noticeably risen due to gains in life expectancy.

Dementia incidence doubles every five years after the age of 65 and importantly there has been more than a 19% increase in this age group since 2011. In fact, it is now estimated that 55,000 people in Ireland have dementia with about 4,000 new diagnoses every year. Extrapolating from current trends this number is set to double over the next 20 years.

Indeed, about one in three people over 65 will develop dementia and its prevalence is about 15-20% by the age of 80. While this may seem grim, for most, dementia is a condition that is slowly progressive over a decade or more and indeed in mild to moderate cases is compatible with leading a good quality of life. For example, mild dementia does not necessarily preclude one from driving a car or engaging in many activities of daily living.

Decline

Depite this, in its early stages more complex functions like managing finances can be affected. Furthermore, with advancing cognitive decline, decisions regarding care needs and other matters can prove difficult due to a loss of mental competency.

When there is a significant memory problem it is prudent to consider making legal provisions for the future. For instance, it is often advised that a person should consider either making or changing a will (where applicable) early in the course of a cognitive decline. For many with early dementia this is usually not a problem.

By law, it requires one to know the nature of a will (i.e. it comes into effect only when one dies), the people who would normally be considered to be entitled to inherit (closest family or next of kin) and the extent of one’s assets. While a solicitor must be satisfied as to one’s capacity to execute a will, it is common (though not necessary) for a doctor to be asked to give an opinion when a patient has dementia.

In the event of one losing capacity to look after their personal and financial affairs, the existence of an Enduring Power of Atorney can be helpful. In fact, setting up or executing an Enduring Power should be considered by anyone though requires a doctor and solicitor.

It involves nominating one or more people to look after your affairs in the event that you become permanently incapacitated in the future as a result of dementia, stroke or other brain injury. Where used, the attorney’s appointed have the legal right to make decisions regarding how your finances are spent to best support you as well as personal care matters such as where you live.

Unfortunately, if one loses capacity and no provisons are made, neither the person themselves nor anyone else has the legal authority to make decisions regarding their finances or other matters.

For applications for nursing home under the Fair Deal Scheme, a mechanism exists (which is commonly used) whereby a “care representative” who is a family member can be appointed at a hearing of the Circuit court to make the decision on behalf of the patient. However, this does not grant power to make decisions on any other financial matters.

Indeed, where there is no Power of Attorney and there are significant finances to be administered, a person may have to be made a “ward of court”.

Many older adults with dementia lose insight into their condition and care needs and indeed refuse supports. While in the majority of such cases, the expressed wish will be to stay at home, this may not be viable or carry a substantial risk.

In particular, patients may not appreciate the issues and risk involved and lack the capacity to make an informed and reasoned decision. In fact, it is often difficult for families who may feel guilty about decisions such as nursing home placement which though contrary to their relatives wishes may be in their best interest.

Recently, the Court of Appeal ruled that there is no legal basis (outside of the Mental Health Act) to detain patients in hospital who express a wish to go home though lack capacity and are at substantial risk to themselves by doing so. This has already resulted in several hospitals making emergency applications to the High Court to give legal status to their decisions and is likely to prompt future new leglisation.

Finally, most parts of the Assisted Decision Making (Capacity) Act 2015 have not been commenced but will allow for a process to facilitate persons who are losing or have lost capacity to make decisions, as well as allow for the creation of healthcare directives. However, making legal provisions in advance can prove to be very useful and is always worth considering.

Dr Kevin McCarroll is a Consultant Physician in Geriatric Medicine, St James’s Hospital, Dublin.

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