Introduction

In the realm of UAE law and its unique legal landscape, addressing issues of capacity, vulnerability, and safeguarding becomes increasingly important. This article explores the concept of the “Twilight Zone,” a phase in which individuals possess legal mental capacity but may be susceptible to financial exploitation due to cognitive impairments, such as dementia. We delve into the nuances of this issue from a UAE perspective and how KBH is committed to safeguarding vulnerable clients.

Understanding the “Twilight Zone”

The “Twilight Zone” refers to a period when an individual maintains legal mental capacity, allowing them to make decisions. However, cognitive impairments, like dementia, cast a shadow over their cognitive abilities. Under UAE law, these individuals may be considered to have full capacity, yet the reality is often more complex. Individuals in this “zone” can be particularly vulnerable to undue influence and financial exploitation.

Legal Challenges in the UAE

In the UAE the Dubai Law No. 9 of 2020 concerning the Rights of Persons with Disabilities in the Emirate of Dubai, addresses various aspects related to the rights and protections of individuals with disabilities, including matters related to mental capacity. Under this law, individuals with disabilities are entitled to certain rights and protections, and their capacity to make decisions is recognised. The law outlines procedures for assessing an individual’s capacity to make decisions and provides for the appointment of legal representatives when necessary. It aims to ensure that individuals with disabilities are supported in making decisions to the maximum extent possible while safeguarding their rights and interests.

It’s important to note that different emirates in the UAE may have their own regulations and laws related to mental capacity and disability rights, but Dubai Law No. 9 of 2020 is a significant piece of legislation in this regard for the Emirate of Dubai.

Recognising Red Flags

In the UAE, professionals need to remain vigilant for signs of declining mental capacity in clients, including:

• Sudden departures from previously stated intentions.
• Decisions leading to adverse outcomes without reasonable explanation.
• Rambling, incoherent instructions.
• Heightened or erratic emotional responses.
• Instructions relayed through third parties.
• Shifts in personal relationships.

Addressing Financial Exploitation

When clients fall victim to financial exploitation in the UAE, there are mechanisms to challenge such transactions. However, these remedies may have limitations. Often, the issue surfaces only after the client has lost capacity or passed away, making evidence collection and compensation challenging.

In cases where undue influence is suspected, transactions can be contested. For lifetime transactions, there may be presumptions of undue influence in certain relationships, placing the onus on the recipient to justify the transaction. However, challenging a will does not enjoy the same presumptions, demanding evidence of overbearing pressure, which can be challenging after the testator’s demise.

Professionals as Protectors

In many UAE cases, exploitation stems from individuals in positions of trust rather than strangers. Exploitation can be sophisticated, relying on tactics beyond fear, including charm. This often results in the person making transfers claiming they are acting willingly, complicating the detection of exploitation.

To protect vulnerable clients effectively, UAE professionals must:

• Promote the creation of Lasting Powers of Attorney (LPAs) for clients lacking them to guard against future incapacity.
• Foster strong relationships with the client’s other advisers to assess behavioral patterns effectively.
• Arrange face-to-face meetings with clients without potential beneficiaries present.
• Maintain comprehensive records of the vulnerable person’s wishes, aligning them with previously expressed desires.

Best practices in the UAE dictate obtaining a formal capacity assessment (with client consent) if mental capacity is in question, offering protection against future challenges.

Conclusion

In the UAE, professionals bear the responsibility of safeguarding vulnerable clients, extending their duties beyond mere capacity assessments. Compassion, empathy, and proactive safeguarding measures must be implemented to protect clients comprehensively. KBH, as a leading law firm, remains dedicated to upholding these principles and ensuring the welfare of all clients, particularly those residing in the “Twilight Zone” of mental capacity.