The Netflix film I Care a Lot has got people thinking about mental capacity and what happens when you lose capacity to look after yourself.
The film revolves around a woman who appears the very image of compassion and caring but is a con artist who deceives judges into appointing her as the legal guardian of older people so that she can rob them of their assets and money.
There are some who hear the premise of the film and find it to be too fanciful and say “that would never happen in real life.” For those of us who practice in the realm of elder law or who work with older people, it looks all too familiar.
Our firm’s elder lawyers have seen cases such as these.
- There is the adult child who doesn’t want mum to sell the family home and travel the world. They make an application to the NSW Civil & Administrative Tribunal (NCAT) to handle their mum’s money and property claiming that mum has lost mental capacity to manage her own finances. The mum has a stressful battle to prove her own capacity, all the time worried that someone else will be given control over her life.
- There is the wife who is seeking to have her husband confirmed as lacking capacity so that she can make medical decisions for him and move him into aged care. But the husband’s best mate is his doctor, and he won’t confirm lack of capacity and the adult son claims dad is just fine. (But then dad just made a new Will leaving him everything). Her application is unsuccessful. Meanwhile, she struggles to care for a husband who refuses to eat, refuses medical treatment, has frequent falls and accidents. She can’t provide the care he needs and all the while, her own health and mental wellbeing suffers.
- There is the father who has appointed his trusted granddaughter as his attorney and guardian but knows that his son will challenge it. What can he do to ensure that the person he appointed isn’t removed or replaced?
- There is the 50-year-old woman who had a car accident and suffered a serious head injury. Her brother was appointed her financial manager while she recovered from her injury. Five years later, her capacity has improved significantly, and she finds out that her brother has stolen $80,000 from her bank accounts and accrued $20,000 debt in her name. By the time he is removed as a financial manager, and she is able to get legal advice, it is too late. He has already spent all the money and can’t pay it back.
- There is the new acquaintance who offers to help an older man with cooking and cleaning, just out of the goodness of her heart. Within months, she is suggesting to him that she can help with other things, such as paying bills. Just appoint her as power of attorney and she can look after all that for him.
- There is the old friend who, once his female friend has lost capacity, falsely claims that they were in a romantic relationship and to have rights over her money and property.
There are many ways an older person’s capacity or lack thereof can be used to gain a financial benefit.
There is a thin line that must be carefully navigated. The line between respecting a capable adult’s right to make decisions for themselves (even foolish, reckless decisions that won’t end well for the older person) and protecting a person whose capacity has diminished (and is vulnerable to manipulation, blackmail) who could end up broke and homeless if someone doesn’t step in.
I Care A Lot has drawn attention to some of the problems that can arise with uncertain mental capacity and substitute decision-makers.
What can I do to protect myself if my capacity is being challenged?
When a person has made a claim that you no longer have capacity to make decisions for yourself, not only can it be incredibly hurtful but it can also lead to serious ramification. You could find yourself in the position of having to prove your capacity to prevent having your decision-making power taken away.
What can I do if a loved one’s mental capacity has diminished and is putting them at risk or I am concerned about the actions of a substitute decision-maker?
It can be hard to know what to do when a family member or friend appears to be losing their capacity. They may be able to make some decisions, but in other ways, they may be vulnerable or at risk of making an irrational decision.
Where a person’s capacity is diminished, we need to support them to make better decisions and protect them, but sometimes it’s not easy to know what’s the right thing to do.
More information and support on mental capacity
For a confidential discussion about these issues and the options available to you, please do not hesitate to talk to one of our caring, expert, elder lawyers on 1800 874 949, or fill in the form below and we will be in touch.