Lasting Powers of Attorney and mental capacity

Assessing a donor’s capacity

When creating an LPA the donor must have the requisite mental capacity to make a power of attorney. Donor’s should be aware of the implications of their actions and the risk of exploitation.

When assessing capacity to create an LPA our specialist lawyers will refer to sections 2 and 3 of the Mental Capacity Act 2005 along with other guidance.

Where the donor’s capacity is doubted

If there is doubt about the donor’s mental capacity, a medical expert can be instructed to carry out a mental capacity assessment.

Where an LPA is being contested and attempts to resolve the dispute fail, the matter may have to be determined by the Court of Protection.

Donors can give written consent in advance authorising their lawyer to contact their GP or another medical practitioner should the need for medical evidence arise at a later date.

The functional and time-specific test of incapacity

The provisions of the Mental Capacity Act do 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, a donor 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 is unlikely to be one particular point at which a person loses capacity to make all decisions.

The Mental Capacity Act promotes 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 and/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.


Contact us for details of our fixed price LPA creation service.

And if you are involved in a dispute involving an LPA and mental capacity issues then 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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