Individuals with interests, assets and connections across multiple jurisdictions understand the complexity of managing their affairs, both financial and personal, in an international context, but what if there is an unexpected, perhaps sudden, decline in an individual’s ability to make decisions about their assets or personal health needs? It can be an incredibly uncertain time for the individual, those close to them and those advising them. In this article, our private client partner Zena Bolwig outlines the scenarios that might arise in such circumstances.
Though there may have been a noticeable decline in the person’s presentation, it may not be clear whether the person has capacity to make decisions about specific issues, including their property or assets and/or their care or health needs.
Whether an individual has capacity to make decisions about any specific issue is a complicated question to answer, but there are some foundational principles to be aware of:
- The person must be assumed to have capacity unless it is established that they lack capacity (often referred to as the ‘presumption of capacity’).
- The person must not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
- The person is not to be treated as unable to make a decision merely because they make an unwise decision.
- An act done, or a decision made, for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
- Before an act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
International advance planning
The person may have created or obtained a foreign private mandate, lasting power or protective measure in another jurisdiction, and/or they may have created Enduring or Lasting Powers of Attorney (EPAs or LPAs) in England or Wales.
Where the individual has undertaken advisable advance planning in this way, there may still be questions about how and to what extent any of those powers can be relied on, nationally or internationally, to provide for smooth management and decision making in relation to the individual’s property and assets and/or their health and care needs, when they lack capacity to do so for themselves. Whether the powers can be relied on and the extent of any steps that can be taken domestically or abroad, once a person lacks capacity, will depend on the nature of the powers, how they were created and what is proposed.
The importance of advance planning
Where arrangements have not been made in advance, whether by way of foreign mandate, power or measure, or an EPA or LPA in England and Wales, there will inevitably be uncertainty and, often, urgent work will be required if the individual then loses capacity.
There will likely need to be arrangements made for the person’s living and/or care needs. If they are physically present in England or Wales but there is a wish for them to move to and receive care in another jurisdiction, substantial investigations and planning will be required. If they have been removed from England or Wales, while incapacitated, to another state, and there is a wish for them to be returned, urgent and complex work will also be required.
There may need to be consideration of specialist care provision, correspondence with state and/or private third parties, or one-off applications or litigation in the Court of Protection or High Court.
If you have concerns about the capacity of an individual to make specific decisions, or what should happen in their best interests once there has been a finding of incapacity, please contact Zena Bolwig.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.