Key Legal Issues for Older Age

How can it happen?  You read stories in the paper, a daughter is arrested for taking her aged, desperately unhappy, mother out of a care home; another son is in court challenging a will having been disinherited from an anticipated large capital sum.  Whether supporting older parents or just reaching later life ourselves, it is useful to understand certain key legal issues relating to mental capacity, healthcare decision-making, financial protection, elderly abuse, and estate planning.

Mental Capacity. Where a person lacks mental capacity to make decisions regarding health, finances, or welfare the Mental Capacity Act 2005 (MCA) in essence provides that (a) individuals should be presumed to have capacity unless proven otherwise; and (b) any actions on behalf of someone lacking capacity must be in their best interests; and (c) the appointment of a Powers of Attorney being a trusted person to make financial or health-related decisions.  Any such appointment can only be made before the person loses mental capacity.

Healthcare The Care Act 2014 requires local authorities to assess and meet the care needs of elderly people, promoting their wellbeing and independence. The act stresses a “personalized care approach,” aiming to ensure that care services meet the specific needs of elderly individuals. Older adults are also protected by the Human Rights Act 1998 which ensures dignity and respect in healthcare settings allowing claims for neglect or abuse in care homes or hospitals.

Financial Protection  Elderly people are especially vulnerable financial and physical abuse.  In the past terrible examples have occurred which could have been averted but for public sector bodies being more “joined up”. The Safeguarding Vulnerable Groups Act 2006 creates legal duties to report abuse or risk of abuse to local authorities who are required to set up Safeguarding Boards.  These boards are legally required to investigate claims of abuse or neglect, offering support and protection to vulnerable adults.

Estate Planning  without a valid will our estate would be distributed under the rules of intestacy.  Most law relating to wills is contained in the historic Wills Act 1837.  Key issues to note include: any will is automatically revoked by marriage (unless the will is made in contemplation of marriage); a will is only valid if it is made with mental capacity and without duress or undue influence;  the will must be in writing, signed and witnessed by at least two people who are present at the same time and are not beneficiaries or married to beneficiaries under the will.