The Looming Incapacity Crisis


The UK is ‘sleepwalking’ towards a dementia crisis with millions of people failing to take steps to prepare for losing mental capacity, according to legal organisation, Solicitors for the Elderly. Laura Colville, Associate Solicitor at our Chichester office, looks at the findings of a new national report that shows the shocking lack of preparation by people in the South East of England should they become mentally incapacitated.

Solicitors for the Elderly (SFE) has warned that around 12 million Britons at high risk of future incapacity have not planned ahead to ensure their wishes are followed by putting in place a Lasting Power of Attorney (LPA). This comes against the backdrop of a sharp increase in people being diagnosed, or at risk of being diagnosed, with dementia.

The SFE, an organisation that connects older and vulnerable clients with legal experts, has described this combination as a looming crisis for the nation. They are encouraging people to tackle the taboos around end of life planning. 

The report, published in conjunction with the Centre for Future Studies, highlights that, against this 12 million figure, there are only 928,000 LPAs currently registered across England and Wales. That’s a difference of nearly 93%.  By 2025, this could be 13.2 million people at risk, yet only 2.2 million LPAs are expected to be in place, even with better education about the risks.

Crisis at its Most Acute in the South East

The national survey revealed some alarming headlines here in the South East, one of the least prepared areas:

  •  97% of people in the South East leave important health and welfare decisions to chance
  • Yet, 75% are worried about becoming mentally incapacitated and losing the ability to make decisions for themselves
  • 71% would like a family member to make medical and care decisions on their behalf, in the event of mental incapacity
  • 80% haven’t discussed end of life medical and care wishes
  • 36% admit to having made no provisions at all, such as a Will, LPA, pension or funeral plan

When it came to thinking about their next of kin and who could take care of their needs in the event of mental capacity, the results showed a worrying gulf in understanding of the law:

  • A staggering 68% of people incorrectly believe that their next of kin can specify what they would have wanted if they are no longer able to
  • 71% of the public would like a family member to make medical and care decisions on their behalf.
  • 64% of people incorrectly believe that their spouse has the power to do so.

Planning ahead is surrounded by worrying misconceptions, especially in relation to health and care preferences.

Only 3% of Britons surveyed in the South East by SFE have a Health and Welfare LPA in place.  More than one third of people nationally admit to not having made any provisions for later life such as putting in place a Will or creating an LPA.

Why having a Health & Welfare LPA Matters

A Health and Welfare LPA allows you to choose someone, such as a spouse, relative or friend, to make decisions on your behalf. These relate to your personal healthcare, welfare and medical decisions, day to day things like your diet, dress and daily routine and including giving power to give or refuse consent to life sustaining treatment.

In the national survey, 47% of people believe that a Do Not Resuscitate (DNR) order is issued by your doctor and is placed on your medical records for every future decision.  A DNR order does not travel with you. Each time you move locations, such as to a new hospital; or care home, a new DNR order needs to be created.

If you embed a DNR request in a Health & Welfare LPA, it makes your wishes known wherever you are, as your appointed Attorney can show the documents to all healthcare professionals involved in your care.

Your Attorney under a Health and Welfare LPA can only act if you are incapable of making the decision in question. It is important to note that Health and Welfare LPAs will take precedence over what some people consider to be “next of kin” rights.

Without a Health & Welfare LPA in place that gives authority to the Attorneys to give (or refuse) consent to life-sustaining treatment, only doctors acting in your best interest have the authority to make the final medical and care decisions for you. This may be with or without the consent of your spouse/relatives, should you not be able to make  such decisions yourself.

If there is no Health and Welfare LPA in place and the doctor decides that he does not wish to breach patient confidentiality, then it likely that adult social services will become involved. They will start making decisions for the patient instead of the family being able to so. There have been a number of widely publicised cases where this has happened, resulting in the family having no say as to where their loved ones live, who visits them, what they eat or what healthcare they receive.

Lakshmi Turner, Chief Executive of Solicitors for the Elderly, said: ‘Far too few of us are planning ahead for our health and care needs and wishes, leaving this to chance. It’s time to set the record straight. Planning ahead by talking to family or friends shouldn’t be seen as doom and gloom, it’s about having a positive conversation about welfare, empowering your loved ones and making the decision-making process easier for everyone.’

Plan ahead for the right care

People with dementia have the right to make choices about their care, just like anyone else. Making someone they trust their Attorney for health and welfare is one of the ways people can do this. Getting a Health and Welfare LPA set up well in advance provides reassurance to them and the act of creating one can start useful conversations about the future with family and friends.

When a person loses capacity to take decisions, it is sad to see families and professionals struggling to try to determine what a person would have wanted. Delays and distress can be avoided by appointing someone to speak for you when you can no longer speak up for yourself.

Anderson Rowntree advises on all aspects of preparing an LPA, including the circumstances in which your Attorneys may act and who you should appoint under the LPA. With considerable experience in this area, we’ll act with sensitivity and can also act as your “Certificate Provider” when your LPA is signed.

For a confidential initial discussion, contact Laura at Anderson Rowntree’s Chichester office on 01243 787899 or email