Capacity While Suffering From Dementia

June 15, 2011 Hull & Hull LLP Capacity Tags: 0 Comments

In Thorpe v. Fellowes Solicitors LLP, [2011] EWHC 61 (Q.B.), a firm of solicitors in London, England successfully defended a negligence action alleging that they acted on the sale of a property without proper instructions from their client, Mrs. Hill, an elderly lady, when she was suffering from dementia.  

The Judgment considers the issue of capacity in detail and, among other things, the Court notes the following:

· a solicitor is generally only required to make enquiries as to a person’s capacity to contract if there are circumstances such as to raise doubt as to this in the mind of a reasonably competent practitioner;

· there is a presumption of capacity, and only if this is called into question should a solicitor seek a doctor’s report (with client’s consent); and

· the Court was satisfied that the lawyer acting on the transaction performed her duties responsibly and took careful notes.

In addition, the Court accepted the evidence of one of the experts whose opinion was that Mrs. Hill was capable to participate in the property transfer even though she suffered from progressive dementia.  Some highlights of the expert’s view are as follows:

· cognitive function can be quite impaired and yet a patient can still have free will and sense of what they want and what they do not want; and

· when assessing capacity medically one would question the patient about how she understands the effect of her decision on other people, and if the patient does understand this, even if there is profound cognitive compromise, then capacity is retained; and

· while dementia may impact on the understanding of particular matters, “even patients with quite severe dementia could still have formed and reasonable opinion" (sic).   

Thanks for reading,

Natalia Angelini – Click here for more information on Natalia Angelini

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