Mental Health, the ticking time bomb

If you believe what you read in the press, we’re all living longer than ever before, and what’s more depressing we’re living longer in ill health.

It’s not a merry topic but if this is true it is more important than ever for people to consider the implications of losing their mental capacity. In the line of work I’m in I find myself asking people more and more if they have even thought about what happens when they get old and maybe not as mentally astute as before.

A will is often last on people’s to-do lists and when they finally get around to meeting with a solicitor to think about the future and what should happen with their assets, it’s often the first time they will even consider provision for their life in mental ill health.

All too often I hear clients say: “I will never go into a care home” and I am left with the task of informing them that if they lose their mental capacity it will not be up to them if they are to go into a care home or if they are to be looked after at home – someone else will decide. The only decision they can make now, is who will be allowed to make that decision.

Start thinking now

It is just over four years now since we saw the change from Enduring Power of Attorney (EPA) to Lasting Power of Attorney (LPA) and my worry is, due to the change, fewer people than before are making powers of attorney.

The initial change saw awkward forms which created confusion and resulted in plain language experts being employed to re-design the then 26 page for and reduce them to a less daunting 11 pages.

The problem with the new regime is not just the increased paperwork but the extra time spent in preparing the documents and advising the client.  This obviously equates to extra cost to the client and this can be the reason why LPAs are not created especially in these uncertain economic times. The concern is that by avoiding the cost now is potentially creating a real problem for clients in the future should they lose their mental capacity.

But where does this leave us looking forward?

People losing mental capacity without an EPA or LPA will have to rely on a deputyship order in which an appropriate person is appointed to look after their financial affairs or health and welfare decisions (there are two types).

I believe there are four major problems which arise from this:

  • It is lengthy, in my experience on average an application takes between 6 -12 months.  This is time when the patient (the person who has lost capacity) has no one looking after their financial affairs. Whilst this may not be too much concern for the patient it is often the cause of great stress to the patient’s family.
  • The cost of obtaining a deputyship order can often be four to five times that of an LPA.
  • The patient does not get to choose who is going to be their deputy, it may end up being someone they didn’t want making decisions for them.
  • A deputyship application is less flexible than an LPA, the Court of Protection (COP) does not like awarding health and welfare deputies which can be appointed under the LPA.  The COP have made it clear, and the statistics show, that the COP wish to deal with health and welfare decisions on a decision by decision basis and therefore a fresh application for each decision. This is not practical for the patient’s family and is likely to cost a lot of money.

My worry is that if clients are putting off creating LPAs there is going to be a generation which is fast approaching which will not have provision for their life ahead in which they are not able to make decisions.

This problem isn’t going to just affect them directly, but also the people around them. Such provision surely must be more important to them than making a will which will only come into effect after they have died.

It’s time to stop the mental health ticking time bomb.

Paul Coombs one of the Wills, Trust & Probate team at Myers Lister Price wrote this blog inititally for the Private Client Adviser and he is a regular blogger the Private Client Adviser website.

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