Lasting powers of attorney and mental capacity

If you require help with assessing mental capacity for a lasting power of attorney or are involved in an LPA dispute then call our helpline on 0808 139 1606 or send us an email with your details.

Assessing mental capacity for a lasting power of attorney.

When someone makes a lasting power of attorney they must have the requisite mental capacity to do so. Our Court of Protection lawyers are experienced in assessing mental capacity for a lasting power of attorney.

When assessing capacity our specialist lawyers take into consideration the requirements of the Mental Capacity Act along with other legal guidance.

Where mental capacity is in doubt

If there is doubt about mental capacity, a medical expert can be instructed to carry out a mental capacity assessment. Written consent can be given in advance by the maker of the LPA (the ‘donor’) authorising their lawyer to contact their GP or another medical practitioner should the need for medical evidence arise at a later date.

Disputes can arise when capacity is unclear. Where an lasting power of attorney is contested and attempts to resolve the dispute fail, the matter may have to be determined by the Court of Protection.

The functional and time-specific test of incapacity

The Mental Capacity Act does not set out a readily identifiable point at which the donor of an LPA is deemed to lack mental capacity.

The Act has a ‘functional and time-specific’ test of incapacity. This means capacity will vary according to the particular decision to be taken at a particular time.

So, someone could have sufficient capacity to make decisions concerning routine household spending, but at the same time lack capacity to make a far-reaching decision such as selling their home. Furthermore, their capacity to make these decisions may be liable to change; either improving or becoming worse. As a result there may not be one particular point at which a person loses capacity to make all decisions. This can present a challenge to anyone assessing mental capacity for a lasting power of attorney.

The Mental Capacity Act encourages a joint approach to decision making, requiring the attorney and the donor to work together. It is always to be assumed that a donor has the requisite mental capacity to make a decision, unless it can be established that they lack it.

Donors shouldn’t be treated as being unable to make a decision unless all practical steps have been taken to help them do so. If necessary, decisions should be deferred or further assistance arranged; especially with health and welfare LPAs or where it has been specified that a property and affairs LPA will only become valid upon incapacity arising.

Attorneys should act in the donor’s best interests

If a donor does lack capacity to make a particular decision, the Mental Capacity Act requires attorneys to always act in the donor’s ‘best interests’.

The Act contains a checklist of factors that must be considered, including consulting with relatives and carers as well as permitting and encouraging the donor to participate in the decision making process as fully as possible.

How we can help

If you are involved in a dispute involving an LPA or need help assessing mental capacity for a lasting power of attorney you can call our helpline on 0808 139 1606. Alternatively please feel free to drop us an email with your details.

Author: cpl

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