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Following the introduction of COVID lockdown 3 on 5 January 2021, we have released a series of articles explaining the legal impact on eight areas of daily life. This article looks at the issue of losing your mental capacity, how COVID can affect your mental capacity and what you can do in advance to protect yourself and your family.

What do we mean by mental capacity?

While we are fit and able it is easy to take for granted the ability to make and communicate our own decisions. Every day we make choices on our lives, finances and healthcare without a thought for what might happen if we lose that ability.

If we are not in a fit mental condition to make decisions, that is known as lacking mental capacity and it means that we lose control over some major areas of our lives and future.

How do we lose mental capacity?

We tend to assume that losing mental capacity is something that only happens to the elderly. In fact there are estimated to be around 2 million people in the UK lacking mental capacity and only around 850,000 of these are due to old age and dementia. Other common causes include:

Alcohol and drug problems
Accidents leading to brain injuries
Mental health problems
Illness leading to prolonged lack of consciousness/coma
Learning disabilities

What are the consequences of losing mental capacity?

As you might expect, losing mental capacity means that you may be unable to make day to day decisions on running your life such as managing your household.

What is less obvious is that is also removes your ability to make legal decisions on key areas of life. Major examples include:

Your banks will not allow you to open or close accounts, write cheques, borrow money, set up new payment instructions or discuss your account with them once they become aware and they are likely to freeze your bank accounts (even joint accounts)
You will not be able to make decisions on your own healthcare, such as how you should be treated for illnesses, whether you should be in a care home, if/when you are submitted to hospital and even whether you should be revived if you are in a coma
You will not be able to sign any legal documents which means you can’t buy, sell or rent a house and you can’t make a Will

The impact of COVID-19

For those who have been unlucky enough to suffer severe symptoms from COVID-19 and require admitting to hospital, around a quarter will end up on a ventilator. At the very least they will be heavily sedated and at worst in an induced coma. At this point they are considered to lack mental capacity.

From a healthcare standpoint, the default situation is that the medical staff in the hospital will then make all of the patient’s healthcare decisions. While they may take the views of family members into consideration they don’t have to do this and ultimately will have the final say on treatment and even when to continue or stop keeping the patient alive.

From a financial standpoint, the family of the patient may also find themselves in difficulty. They may be unable to access their loved one’s bank accounts, and in the worst cases may struggle to run the household, buy food and pay bills.

Making a Lasting Power of Attorney

As we have seen, losing mental capacity means losing the ability to make important decisions for yourself. Fortunately there is a legal way to allow people you trust to make decisions on your behalf if anything happens to you, and that is called a Lasting Power of Attorney.

There are two types of Lasting Power of Attorney:

Financial Decisions (also known as Property and Financial Affairs) – allows your attorneys to make decisions on your finances and property, such as managing your bank accounts, paying bills, claiming pensions and benefits and buying or selling your home
Health and Care Decisions (also known as Health and Welfare) – allows your attorneys to make decisions on how you are cared for, medical treatments and where you live

Both of these Lasting Powers of Attorney can be put in place now to protect you against a future loss of mental capacity. To find out more and to download a factsheet, please visit our Lasting Power of Attorney web page.

Shielding or self-isolating

Lasting Powers of Attorney are are also very useful if you are shielding or self-isolating due to COVID-19. If you are unable to leave your house to go about your usual business, then one of your attorneys will be able to act on your behalf (subject to the lockdown rules in place at the time). This could include going to the bank or drawing your pension for you.

For more information on COVID and mental capacity

If you would like to find out more about mental capacity and how Lasting Powers of Attorney can help protect you and your family then we are here to help. Contact us today to arrange a free initial consultation with one of our expert solicitors specialising in Lasting Powers of Attorney, Wills and later life planning.