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Non compos mentis status

Alolla

Registered User
Mar 31, 2014
11
London
Hello,

Does anyone know when someone with dementia is declared non compos mentis, and who makes that declaration? Is it a GP? A solicitor? A memory care psychologist or nurse?

I have LPA for both health and welfare and finances. Does the fact that these documents were approved by the Office of the Public Guardian automatically mean that hy husband is non compos mentis?

Many thanks for any thoughts or information on this matter.
 

marionq

Registered User
Apr 24, 2013
6,025
Scotland
No it doesn't. It means he has agreed at some point that should it be necessary you can act and make decisions for him. This can be revoked if the person still has capacity. If he has been declared not to have capacity then you can use POA as you see fit in his best interests.

We had POA registered for both of us before John was diagnosed and although I act for John who has no capacity my daughters don't act for me as I still have my marbles. I could revoke my permission for them to act but of course it is for future use if ever.
 
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Shedrech

Volunteer Moderator
Dec 15, 2012
8,702
Yorkshire
Hi Alolla
my working understanding is that for the finance & property, if you honestly believe that your husband no longer has the capacity to deal with these then as you have the POA registered with the OPG already, you are able to take over as Attorney - take a certified copy among to his bank and they will make the necessary arrangements - just be ware, though, that once invoked and registered with the bank, your husband will no longer be able to deal with his accounts, only you as Attorney
eg when my dad moved into his care home I registered the POA with his bank (probably should have done it long before - and the bank were aware of his changing circumstances); talking with the supervisor who made the arrangements, he said another family had recently been in and asked about registering the POA but as they were mother and son and the mother was there and clearly had capacity to deal with her own finances, he explained the situation and they realised the son could help her out without going to the next stage, indeed the bank, having seen the mother would not have proceeded any further

as for the health & welfare - that can only be invoked when the donor no longer has capacity - for us it was when dad went into his care home, all involved agreed that he no longer had the capacity to make health & welfare decisions himself, and the home manager organised the DOLS process to safeguard him
so if your GP and/or your husband's consultant/CPN agree he no longer has capacity, then you can take on those responsibilities - I'm not sure it needs a formal assessment

as I said, though, this is my understanding
 

Alolla

Registered User
Mar 31, 2014
11
London
No it doesn't. It means he has agreed at some point that should it be necessary you can act and make decisions for him. This can be revoked if the person still has capacity. If he has been declared not to have capacity then you can use POA as you see fit in his best interests.

We had POA registered for both of us before John was diagnosed and although I act for John who has no capacity my daughters don't act for me as I still have my marbles. I could revoke my permission for them to act but of course it is for future use if ever.
Thank you for your reply, marionq. My question still is: who has the power/authority to declare him to not have capacity? His GP? A solicitor?

Best wishes to you.
 

Alolla

Registered User
Mar 31, 2014
11
London
Hi Alolla
my working understanding is that for the finance & property, if you honestly believe that your husband no longer has the capacity to deal with these then as you have the POA registered with the OPG already, you are able to take over as Attorney - take a certified copy among to his bank and they will make the necessary arrangements - just be ware, though, that once invoked and registered with the bank, your husband will no longer be able to deal with his accounts, only you as Attorney
eg when my dad moved into his care home I registered the POA with his bank (probably should have done it long before - and the bank were aware of his changing circumstances); talking with the supervisor who made the arrangements, he said another family had recently been in and asked about registering the POA but as they were mother and son and the mother was there and clearly had capacity to deal with her own finances, he explained the situation and they realised the son could help her out without going to the next stage, indeed the bank, having seen the mother would not have proceeded any further

as for the health & welfare - that can only be invoked when the donor no longer has capacity - for us it was when dad went into his care home, all involved agreed that he no longer had the capacity to make health & welfare decisions himself, and the home manager organised the DOLS process to safeguard him
so if your GP and/or your husband's consultant/CPN agree he no longer has capacity, then you can take on those responsibilities - I'm not sure it needs a formal assessment

as I said, though, this is my understanding
Thank you, Shedrech. I think my next step is to speak with his GP, memory clinic supervisor, and solicitor about a formal declaration about his capacity to make decisions for himself regarding all matters. I am already registered with his bank as attorney for finances and have been taking care of those affairs for years.

My question comes out of a concern that his sons may try to get him to sign a new Will without my knowledge when they come to visit him later this year. I wondered if having him declared non compos mentis before they come here would automatically invalidate any Will they try to draw up on their own. It's not a pretty situation, as you can imagine.

Thank you once again.
 

Shedrech

Volunteer Moderator
Dec 15, 2012
8,702
Yorkshire
Hi Alolla
I did wonder whether there were particular circumstances you were facing
I'd say it's significant that you have already signified that you believe your husband no longer has the capacity to organise financial & property affairs ie the legal side of things by registering the POA with his bank, who accepted that your husband no longer has capacity by allowing you to take over running his accounts

I guess you know the terms of your husband's will, and whether the sons are aware and are/aren't happy with it - not an easy situation for anyone

best wishes
 

Beetroot

Registered User
Aug 19, 2015
362
A pwd can have capacity in regard to some matters and not have capacity in regard to others. With my mother, it depends on how she is on the day, which in turn seems to depend on what she's been doing in the preceding few days sometimes and at others heaven only knows.
Neither my mother's previous bank, nor her current bank have made any enquiries at all into her mental capacity; I just opened/closed and run the accounts under the LPA. The same applies to the accounts in which we hold the proceeds of sale of her house. When her house was sold, the solicitor said either she'd got to meet her to check capacity to make sure the sale is valid if Mum signed it, or we'd sell it under the LPA and I could sign it off and they wouldn't worry about Mum's capacity. So, I'm not sure the bank accepting the registered lpa so that you can act is going to help a great deal, although I suppose it may be a pointer.
When it comes to changing the will, if a solicitor is drawing it up, he must be satisfied that the testator has capacity to understand what he's doing. The sons might be able to swing it I suppose - but a lawyer worth his salt, should make absolutely sure they were not influencing him. The sons could write the new will themselves and get their father to sign it. As I understand it, if you are were to cite "undue influence" as a reason for disputing a new will, the burden of proof is on you. I'm not sure where the burden of proof lies if your challenge is based on lack of capacity to sign - I suspect the same may apply. In short, if you have doubts, and only you will fully understand the dynamics here, then yes, get a couple of professionals to confirm he doesn't have capacity to make a will so that, if the sons do try and get your husband to re-write his will, you have the papers to challenge rather than having to go back to people for evidence possibly years down the line.
All that said, I've come across this sort of thing at work, but I'm long retired and so rather out of it all nowadays. To be on the safe side, I'd consult a solicitor if I were you. You could just pay for an hour or so to talk through the problem with someone suitably experienced in the subject.
 

Caz60

Registered User
Jul 24, 2014
253
Lancashire
Hi we have just set the ball rolling as reguards power of attorney for my hubby and myself .The solicitor said if he has any doubt over his capacity he would have to arrange for a GP to assess him .Thankfully it was straight forward and when it is all in place it will stay kind of there until a time comes to use it .This is health and finance and both of our children are the attorney's..x