The Incapacity Crisis

14th February 2019


by by Kieren Cross, Partner, Wills & Estates

Are you aware that there is a looming incapacity crisis?

Have you prepared a Lasting Power of Attorney?

Kieren Cross Fraser DawbarnsYou may feel that you don’t need to make an LPA while you are healthy and have full capacity to make all financial and health and welfare decisions. However, when you are healthy and well is absolutely the best time to create a Power of Attorney. By not setting one up when you have full capacity, you run the risk of leaving it too late.

This is why I urge people to prepare these documents before you need them. It is far better to have an LPA that you never need than to need one that you are unable to get. If there is any doubt about your capacity, this could hinder your ability to make an LPA which would mean you would have to have a deputy appointed by the Court of Protection. This is a more expensive option and you will have much less control over the process.

The importance of taking action early becomes clear in the light of a recent report ‘The Incapacity Crisis, A Nation Unprepared’. This has been researched and prepared by Solicitors for the Elderly (SFE), a specialist group of lawyers supporting older and vulnerable people. You can read the full report at

The SFE report contains some shocking and sobering statistics about the potential incapacity crisis:

  • Dementia has overtaken heart disease as the nation’s leading cause of death, accounting for 12% of all deaths in the UK in 2016.
  • The number of people in the UK diagnosed with dementia has increased by 53.4% in just over 10 years.
  • By 2025 it is forecast that 1 million people will be diagnosed with dementia in the UK. This figure will rise to 2.7 million by 2050.
  • 63% of people believe that a spouse can make medical decisions on behalf of their husband or wife that lacks mental capacity. 65% of people think that someone named as next of kin can do likewise.

There is no single solution to these problems but there are steps that we can take to prepare us for the worst. At the top of the list should be the preparation of an LPA, appointing the people we trust the most to make decisions about our finances and health care in case we lose the capacity to do this for ourselves. An effective LPA allows you to keep an element of control and dignity at a vulnerable stage in your life.

The SFE reports that increasing numbers of people are making Property and Financial Affairs LPAs. The numbers creating Health and Welfare LPAs, however, are lagging. There are 12.8 million people in the UK at risk of dementia, but under a million Health and Welfare LPAs are registered with the Office of the Public Guardian. No wonder the SFE claim that “as a nation we are facing an incapacity crisis; one that we are unaware of and unprepared for”.

The report concludes that to best prepare yourself you should:

Think about your wishes. Everybody’s situation is unique, only you can decide what arrangements you want to put in place for the future.

Have the conversation. Talk to the person or people that you would want to have making decisions for you. The conversation can sometimes be difficult but it shouldn’t be avoided. You may find that you feel better afterwards.

Formalise it with an expert. Anyone thinking about making an LPA should seek specialist legal advice. Although you can prepare your own, mistakes made in a DIY LPA might not be discovered until it is too late. The cost of any errors could be substantial when compared to the costs of having your document prepared professionally.

Read the full SFE report on the incapacity crisis here

Find out more about Kieren Cross

Find out about the LPA services offered by Fraser Dawbarns here

Read Bev Chase’s article on the risks of using unregulated practitioners here

Read Harleen Hanson’s article on the Court of Protection here

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.  Fraser Dawbarns LLP are always happy to provide such advice.

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