Judy Knighton | January 13, 2016
Yesterday, I hit one of the walls that writers can create when they design documents without thinking about the intended reader. In my personal life, I had to use a form written by a lawyer or policy person, but needing a doctor to fill it out. The problem arose because the legal writer did not think about how a medically trained person might interpret the language.
The form in question was an application for property and welfare orders under the Protection of Personal and Property Rights Act 1988. It talks about the person wholly or partially lacking competence to make decisions and to ‘manage affairs in relation to property’.
From a medical point of view, a person wholly lacks such competence only when unconscious. Our relative is conscious and even alert, and makes decisions every day, some with potentially dire consequences; for example, going off necessary medication without telling anyone. The same applies to managing affairs in relation to property; for example, selling it for a song because someone asked for it.
The Act and case law, however, have set an interpretation quite different from this medical standard, one that assumes words missing from the form. Our relative has severe cognitive damage, and wholly lacks the competence to make good decisions taking account of likely consequences; to manage affairs well in relation to property.
When the doctor first filled out the form, he applied a medical definition, and selected the term ‘partially’, which means the application would be rejected. We met with him yesterday evening to talk about the legal definition. He has agreed to fill the form out again.
It remains to be seen whether or not we have convinced the medical specialist. If we haven’t, the next step is a court appearance, which will almost certainly put in place the protection needed but at a huge cost of time and money.
This was certainly a reminder to me that words have power and can change people’s lives.