Mental capacity update
Maddy Greville-Harris, Nick Maguire and Colin Hockley discuss the need for lasting power of attorneys (LPAs) in high-risk groups other than in the ageingpopulation.*
While most of us are likely to have acquired some understanding of the use of powers of attorney, often with respect to the management of the affairs of elderly or infirm relatives, the reality is that they have considerably wider scope and application, potentially being a significant benefit and reassurance to a far wider audience. Unfortunately, perhaps in common with many important legal matters, too few are aware of their scope until the issue becomes urgent and multifarious. Such circumstances are then likely to require complex and contentious court proceedings, inevitably leading to delay, dissatisfaction for some parties involved and significant cost. Greater public knowledge could hopefully lead to more prospective use, to clearer autonomy for the donor and, potentially, to substantial savings in legal costs.
The use of powers of attorney has attracted regular media interest, often prompted by challenges related to the ageing population and increasing prevalence of dementia. While this may increase public knowledge, it also perpetuates the perception that powers of attorney are merely relevant to individuals who are already beginning to lose, or have lost, their mental faculties or legal capacity. While pre-emptive registration of a power of attorney is encouraged in this population, advanced planning may be useful for other highrisk groups. This paper considers whether groups potentially at higher risk of incapacity or injury, such as members of the armed forces, emergency service personnel, individuals with acute mental health diÿculties , as well as those with dementia would, in particular, be likely to benefit from creating powers of attorney.
The individual granting a power of attorney is referred to by the Mental Capacity Act (MCA) 2005 and secondary legislation as the donor, while the individual(s) granted powers are referred to as the attorney(s) (or donee(s) per the MCA). There is no limit on the number of attorneys to be appointed, and where there are two or more attorneys they may be appointed jointly, requiring that they act collectively, or jointly and severally, which allows the attorneys to act either independently or collectively. The former clearly provides greater reassurance for the donor, while the latter allows the attorneys to act without delay or bureaucracy, and avoids the potential revocation of the instrument on the death, disclamation or loss of capacity by any of the attorneys. Both donor and attorney must have reached the age of 18 years, and not lack capacity at the time of the execution of the instrument. There are four discrete categories of power of attorney:
A LPA may be limited to specific matters, or be general, allowing the attorney(s) to do almost everything which the donor could legally do themself, authorising the attorney(s) to act on their behalf and in the donor’s ‘best interests’ . It may be revoked by the donor at any time, while they retain capacity, by notifying the public guardian and attorney(s) and is also revoked on the death of the donor, and by divorce or dissolution when the donor and attorney were married or civil partners.
The option of creating a LPA in advance may allow greater autonomy to the donor, a significant saving on legal costs and the security of reassurance that one’s personal beliefs prevail over the potentially paternalistic interpretation of your ‘best interests’ by a court or professional deputy appointed by the Court of Protection.
Given the potential usefulness of LPAs in advanced planning, this paper focuses on the need for LPAs, notably for groups at higher risk of incapacity, where implementing such measures may be particularly relevant. Alongside individuals with dementia, this paper discusses the need for LPAs for army and emergency service personnel, as well as for individuals with acute mental health problems such as bipolar disorder.
There are over 850,000 people living with dementia in the UK, and this is set to rise to over one million by 2025. Dementia is caused by brain damage from disease or a series of strokes, leading to symptoms such as memory loss and diÿculties with both cognition and language. Although dementia is a progressive illness, there are 40,000 younger people (ie, aged under 65) with dementia in the UK and less than half of those with the illness receive a diagnosis. Given the steady increase in the prevalence of dementia and the incapacity that the illness can cause, advanced planning such as the implementation of LPAs for such individuals is vital.
The Office of the Public Guardian (OPG) recognises the need to ensure that individuals with dementia have LPAs in place, and in its recent business plan the OPG aims ‘to have dementia awareness as an integral part of OPG culture’ . At present, 92% of applications for LPAs are received from individuals aged 65 or over, suggesting that younger individuals, with either dementia or another incapacitating condition, are not implementing LPAs. Although older individuals with dementia are an important target group, LPAs have wider scope than this and should also be considered for other high-risk groups as well as those in younger age groups.
Although there is obvious benefit in implementing an LPA for those with dementia, there are other high-risk groups who would also benefit from an LPA. Those in the armed forces are one such group. There are over 10.5 million former service personnel in the community, and over 2,000 are medically discharged each year. The risk of mental and physical incapacity is considerably increased for these individuals. In a sample of 821 UK military personnel serving during the 2003 Iraq war, the prevalence of common mental disorders was high (27.2%), with alcohol abuse (18%) and neurotic disorders (13.5%) reported most often. Records from the US Department of Veterans Affairs health care system show that, between 2001 and 2005, of 103,788 veterans serving in Afghanistan and Iraq, 31% received a psychosocial and/or mental health diagnosis. Such diÿculties can be perseverant: for 315 former service men, who were diagnosed with minor psychiatric disorders or were unemployed in a previous survey: 43.8% of the sample were found to have a psychiatric diagnosis when subsequently surveyed four to five years after active service; 16.3% had post-traumatic stress disorder (PTSD) symptoms; and 53.4% were depressive.
Exposure to combat is associated with increased risk of developing PTSD.
Although there is a great deal of heterogeneity among estimates of PTSD in army personnel, prevalence has been found to increase over time. Nine to 15 per cent of Vietnam veterans suffered from PTSD 15 years after service. Moreover, in a recent survey 552 UK reservists, who were deployed to Iraq in 2003, still had over twice the odds of PTSD nearly five years later. PTSD can cause a huge amount of incapacity, symptoms such as flashbacks of traumatic events, intrusive memories, dissociation and avoidance are common, and veterans with PTSD are at greater risk of developing dementia.
Furthermore, for those injured during deployment, a substantial proportion has experienced a traumatic brain injury. A postal survey sent in 2005 to Iraq/Afghanistan veterans revealed that about 12% reported a history consistent with mild traumatic brain injury. In a retrospective analysis of self-report data from 1,247 injured service members deployed in Iraq as part of their post-deployment health evaluation, 71% screened positive for mild traumatic brain injury, with 26% also screening positive for PTSD.
Of 213 service members surveyed, who served in Operation Enduring Freedom (OEF) or Operation Iraqi Freedom, nearly half (46%) screened positive for traumatic brain injury. Thus, there is a great need for LPAs among individuals deployed in the armed forces, where the risk of incapacity is high.
As well as army service personnel, emergency service personnel could also benefit from LPAs. Like service men and women, such individuals are at high risk of being frequently exposed to traumatic incidents, increasing their likelihood of developing PTSD. In 2003, 617 emergency ambulance workers in the UK took part in a survey to assess mental health problems. Prevalence of PTSD was high in this sample (22%) with nearly 10% reporting probable clinical levels of depression, and 22% reporting probable clinical levels of anxiety. In another study in the UK, 110 ambulance workers were surveyed, and approximately one-third reported high levels of burnout, PTSD and general psychopathology.
Similarly, in studies of fire- fighters, rates of PTSD have been found to range from 13% to 18% one to four years following a large-scale response incident. In 2012, Berger and colleagues carried out a systematic review of 29 studies looking at PTSD rates in rescue workers. They found that the pooled worldwide prevalence of PTSD in police, fire- fighters and ambulance workers was 10%. Clearly, for such individuals, where traumatic incidents increase the risk of incapacity, there is a need for the implementation of LPAs.
Approximately 5% of the UK population will have serious or clinical depression, 1% will suffer from schizophrenia and one per cent will have bipolar disorder at some point in their lives. Some people with these conditions may have periods when they are capable, and periods where capacity is lost.
Schizophrenia, for example, may cause the individual to experience psychotic episodes, where they cannot distinguish between reality and fantasy, as well as periods where the individual would be considered to have capacity. Similarly, individuals with bipolar disorder will experience acute manic episodes and periods of acute bipolar depression. Manic episodes can include behaviours, such as spending money in an unusual or inappropriate manner, poor self-regulation , making grandiose plans and having diÿculties discussing issues rationally or maturely. At these times, when patients risk rapidly destroying reputations, relationships and finances, a power of attorney might be necessary.
Although the implementation of LPAs would clearly be helpful for individuals without capacity, it is unclear what proportion of individuals in these high-risk groups has an LPA in place. Given that only 8% of the total applications for LPAs per year are from those aged under 65, it appears that the high-risk groups discussed here are perhaps not implementing LPAs, and this imparity needs to be addressed.
Although there is little information about the demographics of those who have applied for an LPA, in the USA it is clear that there is a lack of advanced planning among those with severe mental illnesses. While studies suggest that 50–66 % of patients with severe mental illness would complete an advance directive, only 4% to 13% in the public sector health services indicate that they have this in place. Patients report diÿculties understanding advance directives, filling out the forms and documents and obtaining witnesses.
There are several costs involved in setting up an LPA, for example, employing professional help and obtaining professional certificates from GPs, and the cost of registering an LPA can prevent individuals from implementation. Unfortunately, Court of Protection intervention is often required when individuals complete an LPA but delay registration until it is needed, as once capacity is lost any errors in the LPA application render their LPA invalid. Moreover, completing the LPA application is a lengthy process, requiring wet signatures, a statutory waiting period and OPG processing time, as well as involving various parties, such as donors, witnesses, certificate providers, named persons and attorneys. The length and involvement of this process can prevent individuals from registering LPAs.
In 2014, Beckett, Leary, Cumming and Davies carried out a quantitative survey for the OPG with 1,886 adults aged 45 or over in England and Wales: 45% of survey respondents had not heard of LPAs. Once LPAs had been described to the respondents, 61% were not interested in setting one up in the future. Forty per cent of those not interested in setting one up cited ‘attitudinal and emotional barriers’ as a reason for not implementing an LPA (such as not believing that they would lose capacity); 29% cited ‘relevance barriers’ (such as assuming relatives would manage without the LPA); 26% cited ‘practical barriers’ (such as not having someone to nominate as an attorney); 26% cited ‘information barriers’ (such as not knowing enough about LPAs); and 17% cited ‘process barriers’ (such as cost and the complication of applying). Thus, as well as lack of awareness, there are also several other barriers to implementing an LPA.
In conclusion, this paper outlines the need for LPAs for groups other than those aged over 65, and suggests that increasing awareness and tackling the financial and administrative barriers to LPA implementation would be beneficial. A major barrier to LPA implementation is the lack of awareness that such advanced directives are needed. Given that, at present, only 8% of total applications are from those aged under 65 years, there is a lack of implementation of LPAs from younger ‘at risk’ groups. Tackling such barriers would lead to clearer autonomy for the donor, and potentially to considerable savings in legal costs.
*A list of references is available on request.