Betty 75 is carer for her daughter Wendy 50 who suffered mild traumatic brain injury in a motor vehicle accident several years ago. Wendy phoned her solicitor Mark to advise Betty had just been diagnosed with the onset of dementia. The current diagnosis is that the dementia is slow progressing. Mark advised Wendy that it was extremely important that Betty put future planning documents into place whilst she still has capacity.
As Mark had only met Betty on one previous occasion, Mark requested Betty’s Medical Practitioner Harry, whom she visited regularly to provide a medical assessment of her capacity. This would provide a backing for Mark’s own assessment of her capacity to sign legal documents. Harry stated in his assessment that Betty was currently capable of understanding legal documents if they were clearly presented to her. Mark then took instructions from Betty who was able to clearly answer questions put to her. After several days the documents were prepared and Mark attended on Betty to arrange for signing of the documents.
However, on the day of the appointment Betty seemed to be quite agitated and did not understand the documents or the consequences of her signing same even though she herself had previously given specific instructions. Mark therefore, was not able to arrange for the documents to be executed that day.
Several weeks later Wendy contacted Mark to advise Betty had suffered an extreme reaction to the medication prescribed. Wendy advised Mark that Betty’s medication had since been altered and her mind had become clearer. A further appointment was made for Mark to see Betty in a quiet location where the discussion could not be interrupted.
The documents were read to Betty and this time she clearly understood what the documents were about, how they related to her and how they would be used, and was able to acknowledge this to Mark. On this visit Betty’s capacity was no longer in question. The legal documents were executed and Betty’s future planning documents were now in place and this would enable her family to handle her affairs should it become necessary.
Legal documents can only be executed by a person who has capacity. A person’s capacity can change due to medication, the time of day or for other reasons. All this needs to be taken into consideration when determining if a person has capacity to sign legal documents.If possible, everyone should ensure future planning arrangements are made before capacity becomes a question. Planning ahead is a very important part of managing conditions that may cause permanent memory loss. Some people want to 'put their head in the sand' and deal with it later but sometimes leaving it may mean that it could then be too late.