Six Big Questions Commonly Asked on Mental Capacity and Powers of Attorney

Having the peace of mind knowing that, were you to become too unwell to care for our own matters, you have an appointed person who will care for your property, finances, health, and welfare were you unable to care for them yourself is important. A Lasting Powers of Attorney (LPA) is the legal document that you need to give you this peace of mind.

However, making an LPA relies upon you having what’s known as mental capacity, i.e. the ability to know what you are doing and the ramifications of any decisions you make. Assessing an individual’s mental capacity is just one step taken when making an LPA. Here are six questions that are often asked regarding mental capacity and the making of a Lasting Powers of Attorney.

What is a Lasting Power of Attorney?

In brief, a Lasting Power of Attorney, often abbreviated to LPA, is a document which you put in place during your lifetime, which allows one or more people of your choice (known as your Attorneys) to make decisions and act on your behalf if you need them to in future.

There are two types of LPA – one to deal with your property and financial matters and one to deal with your health and welfare matters.

For more detailed information about why an LPA is a useful document for you to put in place see our dedicated webpage here.

What does “Capacity” mean when doing a Lasting Powers of Attorney?

Every decision that you make requires a certain amount of mental capacity. The test for each decision is different, depending on the circumstances.

To create a Lasting Power of Attorney, the person making it, known as the Donor, must understand the nature of the LPA they are creating, and the powers it gives their chosen Attorneys.

The test that must be satisfied before you can make an LPA is set out in the Mental Capacity Act 2005.

What is the test?

The first thing to bear in mind is that the Mental Capacity Act states that every person must be deemed to have the required capacity to make a particular decision unless it has been established that they do not.

It also specifies that just because someone makes a decision that you consider to be unwise, that does not mean they don’t have capacity.

To make a Lasting Powers of Attorney, the Donor must meet four criteria.

  • Understand what an LPA is, the decisions that the Attorneys will be able to make, and when the Attorney will be able to make them;
  • Retain this information for long enough to make the decision;
  • Use and weigh this information to make an informed decision about whether to make the LPA; and
  • Be able to communicate their decision (by speech, sign language, in writing or by some other method).

If any of these four things are missing, then the person is unlikely to have capacity to make an LPA.

Picture showing a hand holding a pencil over a note book

When does the solicitor apply the test?

The test is applied by solicitors at the first meeting, throughout the progress of the matter, and on the day the Donor signs the LPA(s).

People’s capacity can change day-to-day, especially if they take medication or suffer from a short-term condition which, for example, reduces concentration. Your solicitor will bear this in mind, but you need to make sure that your solicitor know of any medications or medical conditions that might have an impact on things like your memory, your understanding, or your concentration.

What if the solicitor isn’t sure?

If the solicitor is not sure whether or not you have capacity to make an LPA then they will raise this with you and suggest an independent capacity assessment.

They will prepare a detailed letter of instruction to the person doing the assessment, detailing the findings of the test they have already performed and what the assessor needs to look for and report on.

If the assessment confirms that you do have capacity to make an LPA, then the solicitor can proceed but they might ask the assessor to be the Certificate Provider for your LPA in due course.

If the assessment confirms that you do not have capacity to make an LPA, then the solicitor cannot do any further work for you in relation to your LPA(s).

Are there any options when someone doesn’t have the mental capacity to make an LPA?

Yes. All is not necessarily lost if someone is found not to have capacity to make Lasting Powers of Attorney for themselves.

It is possible for an application to be made to Court, asking the Court to appoint someone appropriate as a Deputy for the person, because they cannot make decisions or act for themselves. These applications are made to the Court of Protection and usually take some time to finish.

You would have to provide the Court with good evidence that you being appointed as their Deputy would be in that person’s best interests. You will also have to provide them with details of that person’s finances, living arrangements and family members.

The limitations of this route are the time it takes to get the Order, the much stricter supervision of Deputies as compared to Attorneys, and the fact that, except in very exceptional circumstances, the Deputyship Order will only allow you to make decisions in relation to that person’s property and finances. Deputyship Orders in relation to health and welfare decisions are very rare.

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The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.

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