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The role of mental capacity in Lasting Powers of Attorney

Mental capacity plays a pivotal role in Lasting Powers of Attorney (LPA). At its core, LPA acts as a safeguard for individuals when they can no longer make decisions for themselves due to a lack of mental capacity.

But what exactly does mental capacity mean, and how does it influence the LPA process?

Understanding mental capacity

Mental capacity refers to an individual’s ability to make decisions for themselves. The Mental Capacity Act 2005 defines a person as lacking mental capacity if they cannot do one or more of the following:

Understand information relevant to the decision.
Retain that information.
Use or weigh that information as part of the decision-making process.
Communicate their decision.

A person might have the capacity to make some decisions but not others, and their capacity can change over time due to various factors, including illness, injury, or cognitive decline.

Mental capacity and the creation of an LPA

For an LPA to be valid, the donor (the person creating the LPA) must have the mental capacity to understand the implications of their actions when setting it up. This ensures that the donor is not being coerced or influenced into creating the LPA.

A Certificate Provider, often a professional or someone who knows the donor well, is required to certify that the donor understands the LPA’s purpose and potential consequences. This step acts as a protective measure, ensuring the LPA’s legitimacy and the donor’s genuine intent.

The role of LPA in times of diminished capacity

Once an LPA is in place, it becomes an important tool when the donor’s mental capacity starts to wane.

For example, if the donor develops dementia or suffers a traumatic brain injury, the attorney (the person appointed to make decisions on the donor’s behalf) can step in.

The attorney’s role is to act in the donor’s best interests, ensuring their health, welfare, and financial affairs are taken care of.

Challenging an LPA on the grounds of capacity

Disputes can arise regarding the validity of an LPA, especially if there are concerns about the donor’s mental capacity at the time of its creation.

If there is evidence to suggest the donor lacked capacity when setting up the LPA, it could be declared invalid.

Such challenges can be varied and complicated, emphasising the importance of ensuring the donor’s capacity during the LPA’s creation.

Mental capacity is the cornerstone of the LPA process. It ensures that LPAs are set up with genuine intent and that they serve as a protective measure when individuals can no longer make decisions for themselves.

As our understanding of mental health and cognitive disorders grows, so does the importance of recognising and respecting the role of mental capacity in legal instruments like the LPA.

If you would like to discuss LPA further, our expert team are here to help. Contact us today.