What is mental capacity?

‘Mental capacity’ means having the ability to make a decision. Someone with mental capacity has an understanding of why a decision needs to be made and the consequences of making it.

In some situations you may have the capacity to make some decisions but not others.

More information about mental capacity is provided on the Government website.

With a Lasting Power of Attorney (LPA) you can control decisions that may affect you in the future, even if at a later date you do not have the mental capacity to make them.

An LPA allows you to plan and choose:

• what decisions you want to be made on your behalf
• who will make those decisions
• how you want them to make those decisions

Our experienced Wills, Probate & Later Life Planning team will be more than happy to discuss how LPAs work. Just call us on 01535 662644.

There are 2 types of lasting Powers of Attorney (LPAs):

Property and financial affairs

This LPA covers your money and property. You don’t have to own your own home or have a lot of money to make this type of LPA. It can be used on your behalf, with your consent, as soon as it’s registered.

However, you can state that it will only be used if you don’t have mental capacity.

What might this cover?

• bank accounts
• savings
• investments
• the family home
• investment/rental properties

Health and welfare

This LPA covers your personal and health care. This type of LPA can only be used if you don’t have the mental capacity to make decisions yourself.

What does this cover?

You can use it to let your attorneys decide about:

• your daily routine
• what you wear and eat,
• moving into a care home
• getting help from social services
• to refuse or agree to any medical treatment you may need to stay alive (if your attorneys don’t have that power, doctors would decide).

Some people make one type of LPA, while others make both. You’ll find more information about the 2 types of LPA when you’re asked to choose which type to make.

Your attorneys must always act in your best interests and follow any instructions you give them about making decisions.

These instructions can include:

• whether attorneys make all or some decisions together or individually
• conditions or restrictions on how attorneys make decisions

You can also include preferences that reflect your beliefs and values.

Your attorneys can only make decisions that you’ve allowed them to make in your LPA. For example, if your LPA is for your property and financial affairs, your attorneys can’t make decisions about your care or where you live. If your LPA is for your health and welfare, they can’t make decisions about your money.

Attorneys must follow the Mental Capacity Act Code of Practice. The principles are:

1. Your attorneys must assume that you can make your own decisions unless they establish that you can’t do so.
2. Your attorneys must help you to make as many of your own decisions as you can. They must take all practical steps to help you to make a decision. They can only treat you as unable to make a decision if they have taken those steps without success.
3. Your attorneys must not treat you as unable to make a decision simply because you make an unwise decision.
4. Your attorneys must act and make decisions in your best interests when you are unable to make a decision.
5. Before your attorneys make a decision or act for you, they must consider whether they can achieve the same result without restricting your rights and freedoms so much.

An LPA must be registered by the Office of the Public Guardian (OPG) before it can be used by your attorney/s. Before an LPA is registered, OPG must be sure that:

• the LPA is legally correct
• the LPA has no errors
• people have had the opportunity to object if they have concerns

The OPG can ask the Court of Protection to remove invalid instructions and preferences so that an LPA can be registered.

A donor who still has mental capacity can ask the OPG to cancel their registered LPA if they change their mind.

The OPG protects people who don’t have the mental capacity to make decisions for themselves. If someone raises concerns about how an attorney is acting under an LPA, OPG will investigate or work with other organisations to address complaints.

What if a person does not have the mental capacity to make decisions now?

This would mean that the Court of Protection would need to be involved in order to appoint an appropriate person or to make one off decisions.

For further information about Lasting Power of Attorneys or any other matter concerning wills, trusts or planning for later life contact one of our team on 01535 662644.