Proving Mental Capacity when Making a Lasting Power of Attorney

06 December 2019

To put a Lasting Power of Attorney (LPA) in place, the person doing so needs to have sufficient mental capacity to understand exactly what they are doing. For this reason, it's essential that an LPA is made before it's needed, as it's not possible to for someone to put this document in place once they've lost mental capacity.

In this article, we explain how mental capacity can be proven in order for someone to make an LPA if they have already been diagnosed with a degenerative illness, such as Alzheimer's disease or dementia.

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Making a Lasting Power of Attorney

An LPA is a legal document that gives a named 'attorney' legal authority to make decisions on behalf of the person who made the LPA. This means that it's possible for someone to appoint a trusted person to make decisions for them when they are no longer able to make these decisions themselves.

Without an LPA, no one automatically has legal authority to make decisions on behalf of someone else. Not even immediate family members. What's more, no one is able to make an LPA for someone else after they have lost mental capacity, which is why it's so important that this document is put in place before it's too late.

There are two types of LPA that can be made. One covers Health and Welfare, while the other covers Property and Financial Affairs. It's possible for an individual to make both types of LPA, or just one type. Both types of LPA will automatically come into effect when the person who made it loses the mental capacity to make their own decisions, although it is possible for someone to bring their Property and Financial Affairs LPA into effect sooner than this if they choose to.

Proving Mental Capacity

A diagnosis of a degenerative illness, such as Alzheimer's disease, often prompts a decision to put an LPA in place. But it's important that this isn't left too late as if it is an application would need to be made to the court to put a Deputyship Order in place. This can be costly but would be the only option if an individual does not have an LPA in place and loses capacity. The term 'mental capacity' refers to an individual's ability to make their own decisions, and it's necessary for an individual to have sufficient mental capacity in order to put an LPA in place.

The Mental Capacity Act 2005 states that in order to have capacity to make an LPA, an individual must:

  • have all of the relevant information surrounding Lasting Powers of Attorney
  • be able to retain this information and
  • be able to weigh it up to arrive at the decision to put an LPA in place

What this means in essence is that they must fully understand what the document is, how it works and its implications. They must also not be acting under the influence of anybody else when making their LPA, and must be making their decisions independently and be able to communicate these decisions, whether it be verbally, using sign language or some form of movement such as blinking or squeezing a hand.

If someone has been diagnosed with a condition that will ultimately compromise their ability to make decisions, this doesn't necessarily mean that it's too late for them to make a Lasting Power of Attorney. An assessment will need to be carried out to determine whether they do still have sufficient capacity to put this document in place.

An independent professional, such as the person's social worker or GP, is best placed to carry out this assessment. This can be done in consultation with those closest to the individual, such as their next of kin and/or their care giver.

The outcome of this assessment should be carefully recorded in case it is ever called into question in the future. Our Will Writers may also advise that under these circumstances the individual's GP should act as a witness and/or Certificate Provider when signing the LPA, as this can also be used as substantial evidence if mental capacity is later questioned.

An individual also needs to have sufficient mental capacity in order to make a Will. For more information on this, see Making a Will and Mental Capacity.

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