On being a consumer living with dementia : a socio-legal study of the contractual consequences

This research investigates the experiences encountered when persons living with dementia enter into contracts as consumers with businesses, and what consequences may result from such transactions for the person living with dementia and their families. In doing so, this research seeks to clarify what, if any, legal protections are afforded to persons living with dementia who are often still legally capable, but in practice experience difficulties in fully understanding complex consumer contracts with businesses. Relevant academic literature is reviewed in a scoping exercise to gain a clear picture of the concepts of capacity and financial decision-making in a contractual setting. The review demonstrates that for a person living with dementia, capacity to make financial decisions will deteriorate as the disease progresses. Whilst there is no single path to assessing financial capacity, recognising any reduction of financial capacity is seen as important in ensuring long-term financial security and independence for those living with dementia. The review also highlights a clear gap in literature relating to consumers living with dementia. A doctrinal review of relevant laws is undertaken, and includes analysis of contract law, capacity law, consumer rights, as well as human rights in the context of equality and non-discrimination laws. The thesis highlights the lack of cohesion between the various laws, resulting in some consumers living with dementia falling through the gaps and not being adequately protected when entering into contracts with businesses. In addition to the close examination of the law, new empirical data is sought through semi-structured interviews with a number of stakeholders, including persons living with dementia, their family members and carers, as well as charities that advise and work with people affected by dementia. Analysis of the results indicates multiple concerns relating to capacity, knowledge, and protective measures aimed at countering financial harm. In practice, as roles within families evolve, capacity is often ignored in favour of safety and security of the person living with dementia. Where capacity is considered, difficulties arise as to how and who should assess a person's legal capacity to make decisions. The thesis highlights the difficulties of understanding and/or remembering the terms of the contract, which can lead to unintentional breaches of contract. Fear of stigma results in many consumers living with dementia deliberately refusing to disclose their condition, resulting in the business's lack of knowledge of any issue. There is a sense of powerlessness in seeking to terminate consumer contracts outside of the (often onerous) terms of the contract, although pragmatic solutions were presented, such as withholding payments, pleading for understanding and questioning the risk to reputation of the business. Building on from these practical solutions, the thesis suggests a range of legal solutions, such as a review of doctrine and legislation, to improve the contractual position of consumers living with dementia.