A harrowingly believable portrait of dementia maybe but a harrowingly bad portrayal of a solicitor meeting with a person who their family claims has memory loss…
It does annoy me when dramas about dementia have the opportunity to educate people about legal matters and instead convey a false impression of what might happen in certain circumstances, but I should get out more, granted. The BBC’s new series, Exile, starring Jim Broadbent and Jon Simm included a scene in which the family, desperately in debt due to caring duties, attempt to access their father’s money with the help of a solicitor. Of course we know that family or friends of an elderly person cannot simply rock up at their local solicitors firm, announce ‘This person has memory problems’ and expect the solicitor to believe them however, any solicitor worth their salt is going to do more than say to the person in question ‘And do you agree with this course of action?’ This is not a test for capacity which would stand up under any close inspection.
The Mental Capacity Act 2005 lays out the 4 stage test for capacity – does the person understand the information being given to them? Can the person weigh up the pros and cons of the decision they are making? Can the person retain the information for as long as is necessary to make a decision? Can they communicate their decision?
So in the case of Sam [Jim Broadbent] the solicitor should have probed further – did Sam understand that there were outstanding debts that needed paying which were causing his primary carer (his daughter) a great deal of stress? Did he understand the disadvantages of denying her any of his quite substantial savings to clear these debts? Could he elaborate at all on why his answer to the question ‘Do you agree with this course of action?’ was ‘No’.
Let’s face it, most people when asked if they would like someone to take charge of their finances would think ‘Not really thanks all the same’. For people with dementia who are living in an often confusing and scary world the prospect of losing control of one’s money, even to a family member, is terrifying.
Had the solicitor been satisfied that Sam had capacity to deny his daughter access to his money she could still have gone ahead and applied to be his Deputy for Property and Finances. The Court of Protection would then determine, if Sam contested the application, whether or not the daughter ought to be appointed or not. Just because someone is having a ‘good day’ and presents well does not mean that they are coping and managing their lives as best they might given the appopriate support and a one question capacity test does not cut the mustard in such circumstances.