Does a person need capacity to make a Lasting Power of Attorney?
Yes. A Lasting Power of Attorney can only be made, signed and registered if a person has capacity.
Anyone making a Lasting Power of Attorney needs to fully understand the legal implications of the documents, and need to be able to make the decision themselves about who should act as their Attorneys, and any restrictions they may want to add to the documents. After all, they all giving their Attorneys a lot of power, and it should be someone or people who the Donor trusts.
However, if a person doesn’t have capacity, you may be able to make an application to the Court to be appointed as a Deputy. Read our full list of Court of Protection FAQs.
What does mental capacity mean?
Mental capacity means that the Donor who is making the Lasting Power of Attorney fully understands the document that they are making, as well as the implications of the document. They also are able to provide their own instructions about who should be appointed as Attorneys, and whether they wish to include any preferences or instructions.
How would you assess whether a person has capacity?
Our team of Lasting Power of Attorney Solicitors would usually be able to assess whether a person has capacity. If there is any doubt about a person’s capacity and their understanding of the documents, it’s important to have them fully assessed, to prevent any issue with the documents in the future. For example, a GP may be able to attest to a person’s capacity, although they may charge a fee for this. This can be in the region of £100.00, although may be more or less depending which GP you instruct.