Driving with Dementia – An Attorney’s Responsibility?

Do LPA attorneys have an obligation to stop Donors from driving with dementia?

Have you ever set off to drive somewhere you’ve been to before but momentarily your brain freezes and you can’t think which route you should take? Most people would admit to experiencing a bit of brain-fog once in a while and thankfully we have the benefits of sat-nav these days.

But what if you start to experience that memory lapse more regularly or you get muddled between the brake and accelerator more than a few times or find you’re forgetting how to manage a right turn at a junction? What if these are becoming common occurrences for you because you’re developing dementia? If so, should you continue driving with dementia?

Commonsense might say that it’s time to give up driving if those sorts of incidents are happening to you regularly. The problem is that someone who has dementia might not be able to remember that such events are happening to them on a regular basis. They may be unable to comprehend the level of serious harm they might cause if they continue to drive.

Driving is a fundamental part of many people’s lives and the thought of having to give it up can cause them serious anxiety. The ability to drive represents independence, a sense of self-worth and even a pleasure to be enjoyed. Unfortunately, a person who is experiencing mental capacity issues may not have the ability to look at the problem objectively. In which case should it be the responsibility of their attorney appointed under a Lasting Power of Attorney to step in and take the car keys away?

An attorney has a duty to act in the best interests of the Donor of the power of attorney (s1(5) Mental Capacity Act 2005 (MCA)). Principle 4 of the MCA is that ‘a person is not to be treated as unable to make a decision merely because he makes an unwise decision.’ Therefore, how can an attorney resolve the dilemma of how to respond to fears that a Donor is becoming a danger on the roads? There are a number of ethical and legal issues for attorneys to consider. Another of the principals set out in the Mental Capacity Act 2005 is that anyone taking decisions or actions on behalf of a Donor must establish if the aim can be achieved in a way that is less restrictive of the rights and freedoms of the Donor.

The law concerning driving with dementia

From the age of 70, a person’s driving licence has to be renewed with the Driver Vehicle Licence Agency (DVLA) every 3 years. It’s a legal obligation for a driver to declare certain medical conditions to the DVLA. If you’re involved in an accident and you haven’t declared a health condition, your insurers may refuse to cover you. One of the medical conditions you must declare to the DVLA is dementia.

If you’re someone’s appointed attorney and you’re concerned about the Donor’s fitness to drive you could attempt to discuss the issue with them. Try to do so and if the Donor is unable to make the decision about continuing to drive then you should probably suggest that the person has a medical assessment. When it is clear after all reasonable efforts have been made to get the Donor to make a decision about whether they should continue to drive they have been unable to do so due to a lack of mental capacity you can make the decision on the Donor’s behalf. That could include making a declaration to the DVLA.

Before taking any of those steps as an attorney it would be worth considering whether you have the necessary authority to make such decisions on behalf of a Donor. Check whether you have been appointed as the Donor’s attorney under both an LPA for property and financial affairs and an LPA for health and welfare decisions. If you’re thinking about making Lasting Powers of Attorney yourself take time to consider the kinds of decisions and actions your attorneys might need to take on your behalf, such as declaring your medical conditions to the DVLA.

Please note that copyright in all the material in this Blog is held solely by Barker Evans Law Ltd, and so this material may only be accessed for personal study, and may not be reproduced or republished in any form without the author’s prior written permission.