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Loss of Mental Capacity: A Global Perspective

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STEP is a global professional body comprising lawyers, accountants and other professionals who help families plan for the future. It has recently published a research report together with the Alzheimer’s Society, exploring the impact of mental capacity-related issues experienced by its members and their clients.

Drawing on 756 responses from members across 44 countries, the report examines the impact of mental capacity on day-to-day professional practice, and gives some insight into the sorts of issues faced by legal and financial professionals. It also advises on the information needed by the public and some of the steps legislators and policy makers can take to improve regulatory frameworks.

In this blog, we will draw out some of the key findings from the report and how they relate to the Mental Capacity Act (2005) in England and Wales.

Key findings

The key findings from the STEP report are as follows:

  1. Capacity issues and requests for advice on the issues have been increasing and will continue to increase. The ageing population demographic is the primary reason for this increase.
  2. Financial abuse is increasing. It is most prevalent when there is uncertainty about whether a person lacks the mental capacity to make a decision or when a representative is exercising their authority on behalf of the incapable person.
  3. Capacity is a complex issue for practitioners, service providers and families.
  4. Although the Lasting/Enduring Power of Attorney (LPA/EPA) is an important legal tool for planning for future incapacity, there are barriers and issues to be addressed locally through policy and legislation.
  5. There is a demand for cross-boarder recognition and portability of LPA/EPA powers.
(STEP 2023, p. 7)

Reflections on the STEP report

It is perhaps no surprise that Mental Capacity remains misunderstood, as this is something that has been reported on many times within the health and care professions (3). Although enquiries are increasing in the field of financial planning (1), knowledge and confidence in applying mental capacity, alongside the relevant roles and responsibilities, continues to hold ‘uncertainty’. The reasons for this uncertainty can be many and varied, especially considering the international context of this report, however, knowledge of when and how to assess, where the threshold of capacity lies and what to do next are certainly key factors.

Arguably, the rise in queries relating to mental capacity may in part be attributed to an increased awareness of issues around rights, future decisions and best interest. From which the reported increase in financial abuse (2) globally may not be an increased in occurrence but increase in recognition and challenging of this abuse. Either way, clearly something needs to be done to cut out opportunities for financial abuse, and the STEP report does a good job of bringing this important issues to light.

Linked to these matters, is the recognition of Lasting Powers of Attorney (LPA) as an empowering tool that can aid future decision-making (4 & 5). However, there are clearly issues around how LPA applies across international borders. There are also ongoing issues around the ease with which people globally can access and apply for LPA , and then how LPA is monitored and enforced.

Together, these findings reminds us that we need to continue our efforts to raise awareness around mental capacity – both among the general public, and among professionals working in fields within which the Mental Capacity Act applies. Knowledge and access to services are absolutely vital to protect choice, autonomy and rights.

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