The Law Handbook 2024

788 Section 8: Disability, mental illness and the law Cognitive impairment and decision making The law presumes that people over the age of 18 have the capacity to make (and live with the consequences of) their own decisions. People with cognitive impairment often experience difficulties with this presumption in two ways: • their right to make their own decisions (and mistakes) is ignored, and other people are allowed to make decisions for them; • their need for support to understand the implications of important decisions is overlooked or purposely exploited. It is equally important for people with cognitive impairment to be free to make their own choices as human beings (e.g. to vote, to decide who they have a relationship with, whether they will marry, or become a parent, where to live, what employment or hobbies to pursue, what to buy, how to spend their time, what they want to happen to their possessions after they die, what medical treatment they want, and how they want end-of-life decisions to be made) and to be protected from people who would cause them harm by pushing them into choices they don’t fully understand. The challenge that many people with cognitive impairment face relates to a misunderstanding of the presumption of capacity, when: • people overcomplicate the level of understanding needed to make everyday decisions . For example, why should a person with cognitive impairment have a more detailed knowledge of the policies of every candidate for an election than other voters? Why should they need to understand absolutely every potential implication of entering into a relationship, when nobody else has to do that? • people take advantage of people with a cognitive impairment’s need to have information explained in a way they can understand, exploit them, and undermine their confidence . Most people assume a level of legal literacy and consumer protection to choose to agree to some things without questioning and be suspicious of others.Wemake these decisions based on both experience of other similar transactions, and our confidence in the person proposing it. Many people with cognitive impairment have had few chances to make their own decisions and have a very limited social circle. They can be coaxed to agree to things that do not benefit them at all, solely because the person suggesting it is a ‘friend’. The desire to be seen as a competent person capable of making their own decisions – when their decision- making rights are constantly challenged by others – can create this vulnerability. Important rights and protections for people with cognitive impairment are summarised below. Signing a contract Adults are presumed to have capacity to enter into a contract with another person. Unless a person is subject to an administration order (see Chapter 8.5: Guardianship and medical treatment), the other party to the contract can assume the person has capacity, within the constraints of the relevant consumer law and financial regulations (see Section 5: Managing your money and Section 7: Consumers, contracts, the internet and copyright). People with cognitive impairment may need support when making decisions, including entering into contracts. This does not mean they can’t enter into contracts, just that they may need some additional assistance to: • understand what the contract is about, and what the terms mean; • understand their choices and that they do not have to sign a contract they don’t agree with; • make sure the contract is beneficial to them, and will meet their needs; • understand what they can do if they have a problem after they have signed the contract. Consumer rights apply to people with cognitive impairment. It is unlawful for a business to take advantage of a person with cognitive impairment by: • creating undue pressure on the person to sign a contract, or agree to terms they do not understand; • not making sure they understand the terms of the agreement; • signing someone up to a loan that is not suitable for their needs, or that they can’t pay. Being a parent Parents with cognitive impairment have interaction with the child protection system at a far higher rate than other parents. While the child protection system