What Is Mental Capacity In A Lasting Power Of Attorney?
Posted on 1st June 2020
In order to make Lasting Powers of Attorney (for Financial Decisions and/or Health and Welfare decisions), a person must have mental capacity. If a person does not have mental capacity, they would be unable to make Lasting Powers of Attorney, and a loved one would, instead, need to make an application for a Deputyship Order. You can read our Wills, Trusts and Probate Solicitors in Lancaster’s FAQs on these Orders, here.
To help you understand what level of mental capacity the person making the Lasting Powers of Attorney must have, our expert team who draft Lasting Powers of Attorney on a daily basis have explained what it means to have capacity, and how this would be assessed.
What is ‘mental capacity’?
Lasting Powers of Attorney mention the words ‘mental capacity’ a lot. Therefore, it’s very important to make sure that you understand what this word means in relation to your Lasting Powers of Attorney before you start trying to make them.
In terms of making Lasting Powers of Attorney, to have mental capacity a person needs to have the ability to make a specific decision themselves at the time that it needs to be made. Our Wills, Trusts and Probate Solicitors in Lancaster and Preston would usually require our Lasting Powers of Attorney clients to have a general understanding of the following when they instruct us to prepare the documents on their behalf:
- The decisions to be made to make the Lasting Powers of Attorney. For example, who they want to appoint as Attorney/s, whether they wish to impose any restrictions or provide any instructions for their Attorneys, how their Attorneys should be appointed to act, and when they want the document to be able to be used. You can read more about these decisions in our Lasting Powers of Attorney Solicitors in Lancaster’s blog, here.
- Why they need to make the decision. The Donor needs to be able to understand what the purpose of the document is and why they are making the decisions that they are.
- Any other information relevant to the decision.
- How the document could be used once they have made it. The Donor should generally understand how their Attorneys could use their Lasting Powers of Attorney, and when they can be used.
The Donor should be able to communicate their decisions, usually through speech, signs or gestures, however, other ways have been experienced by our Lasting Powers of Attorney Solicitors in Lancaster before.
In some cases, a person can have capacity to make some decisions themselves, but not others. For example, they may be able to decide what they want to do that day or what food they want to eat, however they may not be able to fully comprehend the purpose behind an insurance policy and they may not be able to arrange it.
If you are unsure whether your loved one has capacity to make a Lasting Power of Attorney, our Wills, Trusts and Probate Solicitors in Lancaster or Preston could arrange a home visit or an appointment at our offices, where we could discuss the Lasting Powers of Attorney with your loved one. Usually, we would be able to ascertain whether they had capacity to make the documents. However, in the rare cases where a further opinion is needed, your GP or another medical professional should be able to prepare a report detailing whether the person has capacity or not.
Why does a person need to have mental capacity to make Lasting Powers of Attorney?
Under the Mental Capacity Act 2005, there are five main principles which apply:
1. A person is assumed to have capacity, unless it is established or proved that they do not.
2. A person must not be treated as unable to make their own decisions, until such time as all practical steps are taken to help them make decisions without success.
3. Just because a person has made an unwise decision, this does not mean they should be treated as though they do not have capacity.
4. Any act carried out or decision made on behalf of a person who lacks capacity, must be done with their best interests in mind.
5. Any act carried out or decision made must be made in a way that is the least restrictive of a person’s rights and freedoms of action, for the purpose that the act or decision is required.
For the purposes of assessing whether a person has mental capacity, principles 1, 2 and 3 are very important. Until they are no longer able to make decisions themselves, a person should be given the freedom to do so. Therefore, as the person making the Lasting Powers of Attorney is giving authority for someone else, either immediately or in the future, to make decisions on their behalf, it’s important that they understand the purpose of Lasting Powers of Attorney and how this could be used in the future.
If a person does not have capacity and an application needs to be made to the Court of Protection for a Deputyship Order (as discussed above), they must lack the ability to make decisions themselves, and it must be in their best interest that a certain person is appointed as Deputy. That’s why the Court rules on these decisions, and does not allow people to make Lasting Powers of Attorney on behalf of their loved ones.
How is mental capacity assessed?
Gov.uk sets out two questions which can be asked to help to judge whether or not a person has mental capacity:
1) Do they have a mental or brain problem stopping their brain or mind from working or functioning correctly?
2) Is their problem preventing them from making this particular decision at the time it needs to be made? This could mean that they cannot understand all of the relevant information about the decision that needs to be made. They may not be able to retain the information for long enough to come to a decision or to weigh up the information to make the decision themselves. They may also be unable to communicate their decision, either verbally, through the use of sign language, or even other forms of communication, such as gestures.
If you can answer ‘yes’ to both questions, then it could be likely that the person lacks mental capacity to make a decision.
If you are unsure, our Wills, Trusts and Probate Solicitors in Lancaster and Preston may be able to assess your relative on your behalf, if you believe they no longer have capacity. Alternatively, if the decision that the person needs to make is a ‘big’ decision or more complex, we may suggest that a GP or other medical professional carries out the assessment of your loved one.
Contact MG Legal to discuss making Lasting Powers of Attorney
To discuss making Lasting Powers of Attorney yourself, or to find out whether your loved one would be able to make Lasting Powers of Attorney (for example, if they are suffering from mental capacity issues), contact our Lasting Powers of Attorney Solicitors in Lancaster or Preston online, here, or call your local office: 01524 581 306 (Lancaster), 01995 602 129 (Garstang) or 01772 783 314 (Longridge, Preston).
Our team have over 15 years of experience in drafting Lasting Powers of Attorney, and making applications to the Court of Protection for a Deputyship Order when a person lacks capacity, and we will be on hand to offer you guidance and support throughout your matter.
Both types of applications are offered for an excellent fixed-fee, which you can find out more details about, here.
Don’t just take our word for our expertise, read our excellent reviews online, here.
Tagged as: Mental Capacity, Preston Law, Solicitors in Lancaster, Wills & Probate, Your Local Solicitors
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