Whether married or unmarried, many people choose to share their lives with another person, living together and caring for one another. But what happens if you come to a point in your life where you’re deemed to lack capacity in relation to choosing where you live or who cares for you? How much notice do people take of your wish to be physically with that person, when, and if, you lose capacity?
Section 2 of the Mental Capacity Act 2005 provides that,
‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’.
We are assumed to have capacity to make decisions unless we are professionally assessed to lack capacity. Assessments are carried out in specific areas, for example, you may be assessed to have capacity to make decisions in relation to contact but lack capacity in relation to decisions about residence and care.
Section 3 of the Mental Capacity Act 2005 provides questions to be asked when capacity is being assessed, these include,
- Can you understand the information in relation to the decision to be made?
- Can you retain/remember the information to make the decision?
- Can you weigh up and use the information to make the decision?
- Can you communicate your decision?
If following this process, you are considered to lack capacity in an area, decisions in respect of that should be made in your best interests with the input of those around you. Circumstance specific, this may include, family, friends, care staff, doctors and social workers. What is vital though is that whilst you have been considered to lack capacity to make a decision, this should not mean that your views are no longer heard. Even in this case, you should remain involved in the decision-making process as much as possible. This is why wishes and feelings are critical – What do you want? How do you feel about the decision to be made?
What do you wish to happen?
But how much weight do your wishes and feelings hold? The answer essentially is ‘some’ weight. Whilst previous and current wishes and feelings are to be considered when a best interests decision is made, there are multiple other factors that come into play which may outweigh these.
These include:
What are your care needs? What are your partner’s needs? What are your family’s views on the matter? Are there any available options for living together in a shared room? Are there two separate rooms in the same placement? If you have different needs, is there a dual registered placement available? Are there funds available for a care package at home? The list goes on.
When these factors start to come into play, it’s easy to lose sight of the fact that a person has chosen to spend their life with another and yet now those people are deemed to lack the capacity to make a decision about where to live, there is power given to the state to physically separate those two people. This is even more complex when both persons mental capacity is in question.
It can feel that a person’s article 8 ECHR rights, the duty on the state to respect family and private lives are undermined when it comes to the practicalities of the options actually available and the decision making process.
Whilst decisions in relation to those deemed to lack capacity are to be in their best interests, in the case of a couple, the decision on the face of it is one, put simply, of where each individual should reside.
It surely should be factored into the decision-making process that the two people are a couple and therefore where they each reside will impact upon the other. At times, the answers can be conflicting, for example, Mrs X may wish to continue residing with Mr X, however Mr X does not express any strong feelings about this. This adds to the complexity and question of how much weight is given to the wishes and feelings of the couple together and as individuals.
Particularly in cases where people present with a degenerative condition such as dementia, this can be even more difficult given the way in which the condition can impact upon a person and therefore obtaining their current wishes and feelings.
The history of a relationship is between two people and whilst others, such as social workers, family and even ourselves as their legal representatives may be able to provide views on how they lived or what their relationship was previously like, ultimately, we are all outsiders to that relationship. Despite this, the impact of the views of those outsiders coming together can cause the physical separation of that couple. This shows the vitality of representing both previous and current wishes and feelings and for these to be considered with weight.
What can you do to try and plan ahead? Whilst you have capacity, you can appoint an attorney via a lasting power of attorney. You can appoint attorneys separately for health and welfare, and for property and financial affairs. Their role in effect means nothing until you are assessed to lack capacity but means you have been able to choose who you wish to make those decisions for you when you no longer can. It is a good idea to discuss with the person who you appoint as your attorney what you would like to happen in various situations.
It is critical to plan ahead and to do what you can to protect your future as early as possible to ensure your voice continues to be heard loudly.
FICTIONAL CASE STUDY – The experience of Mr and Mrs B
Mr B and Mrs B are a couple who have been married for 23 years.
Mr B is an 80 year old male who has a diagnosis of Alzheimer’s dementia and has been assessed as lacking capacity to make decisions in relation to his residence and care. Mr B’s dementia is quite advanced. His level of need means that he now requires 24 hour care support and access to a nurse on site.
If Mrs B had been appointed as Mr B’s health and welfare attorney via a lasting power of attorney made when he had capacity, when Mr B was assessed to lack capacity, Mrs B would have the power to make the decisions about Mr B’s daily routine, the care he receives, where he should live and any medical treatment he received.
Mrs B who is an 83 year old female now also receives a diagnosis of Alzheimer’s dementia. She is in the early stages, however has also been assessed as lacking capacity to make decisions in relation to his residence and care. Mrs B’s level of need is lower than Mr B’s and she is considered to only require 24 hour care support, without the need to have access to a nurse on site.
Both Mr and Mrs B have consistently expressed a wish to live their final years together, however a difficulty arises in that they have different needs and therefore finding a care package/placement that can meet both their needs may be difficult due to limited options of dual registered placements – placements which have both residential and nursing units. If one cannot be found, a best interests decision may be made by social services for them to reside in separate placements for their care and support needs to be met, despite the fact that they have spent the past 23 years of their life together as a married couple and have continued to express a wish to reside together.
Mr and Mrs B could have appointed 2 attorneys each – each other; and their daughter. In this case where they both are assessed to lack capacity, their daughter would take on the role to make the decisions about Mr and Mrs B’s daily routine, the care they receive, where they should live and any medical treatment they receive. Mr and Mrs B may have discussed the situation with their daughter previously of what they would like to happen in this situation and she could then make these decisions in accordance with clear previous wishes and feelings.
13th December 2022
Harriet Hansen