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Mental capacity, Alzheimer’s and family law

31 Oct 2019

The BBC recently reported that the medical profession could be on the cusp of a breakthrough in the treatment of Alzheimer’s with a new drug that may slow down the rate of progression of the disease. Whether this will be the case is yet to be seen, but how does Alzheimer’s impact upon a family law matter?  How is a person diagnosed with Alzheimer’s, or a mental health illness, able to manage their divorce, let alone negotiate a settlement? 
 
This is where the appointment of an experienced family solicitor becomes essential. That family solicitor will need to weigh up if the client has the mental capacity to engage in the process and, if not, apply to the Court of Protection so that an official solicitor can be appointed on their behalf to assist in making the decisions necessary to manage their case. 
 
But what is mental capacity, and if someone is diagnosed with a degenerative mental illness, does this mean that they automatically lose their ability to actively engage in decisions about their family law matter? The Mental Health Foundation states that ‘mental capacity’ is defined as the 'ability to make your own decisions'.  Someone lacking such capacity may not be able to do one or more of the following:
 
  • Understand information  
  • Retain that information  
  • Assess the information available to make the decision
  • Communicate their decision
 
It should, therefore, not be presumed that because someone has been diagnosed with a mental illness that they will automatically lose their ability to actively participate in, and instruct a solicitor to represent them in their family law case.

I recall a case where I represented a husband who had been diagnosed with early onset dementia. The first step was to confirm with his medical consultant that he had the mental capacity to instruct me, explaining to the consultant the issues and decision making that would be involved in his case. Whilst the consultant confirmed that he did have capacity, it was then necessary to continue a dialogue with his consultant so that, if the position changed, we could ensure the correct representation and protection was in place for him.
 
There is also the need for a family solicitor to trust their own professional judgement. In another case, I represented a husband who suffered from paranoid delusions and regularly failed to take his medication to manage the condition. Despite his consultant informing me that he had capacity to give me instructions, my own observations made clear to me that he was unable to properly weigh up the information being given to him to make informed choices about his case. I therefore referred the matter to the Court of Protection to make sure he had the proper support and representation needed to progress his case. 
 
These examples highlight why it is crucial that you appoint an experienced family solicitor to do what is right for the client, even if that means ceasing to represent them. An experienced solicitor will not only manage the case with sensitivity and care but also continue to assess whether the client has capacity to continue to instruct them.
 
In summary, do not assume that your loved one cannot instruct and properly engage with a solicitor because they have been diagnosed with a mental illness or a degenerative mental disease. However, do be reassured that if they do lose capacity to actively engage in their case, there is support in place to ensure that decisions can still be made in their best interests. 

If these issues affect you, please contact Samantha Jago either by phone or email. 

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