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Sufficient Mental Capacity

Understanding by the Donor

Having sufficient mental capacity is required before someone can make a Lasting Power of Attorney (LPA).

If there are concerns about the donor making a Lasting Power of Attorney and not having sufficient mental capacity, they should be asked about their understanding of what an LPA is.

They should be able to give a reasonable outline of what they think a Lasting Power of Attorney is and what it does.

The Certificate Provider (that is the person who considers if the donor  understands what they're doing) should first explain to the donor what a Lasting power of Attorney is and what the attorney can do with it.

The donor should be asked whether they understand that an LPA allows someone else to manage their finances or to make treatment decisions for them if they lose capacity.

Can they give examples of how an LPA might be used?

Do they understand that once an LPA is registered, the Attorney is registered attorney is able to heir affairs or to make treatment / welfare decisions if they are not able to do so. 

Do they realise the LPA only comes into force once it has been at registration with the Office of the Public Guardian.

Do they understand that a Property and Affairs LPA, once registered can be used to manage their finances, even before they lose capacity. 

If the Donor decided not to make an LPA, if they lost mental capacity who might be asked top make decisions for them.

 

Assessing understanding

The MCA 2005 provides that mental capacity exists until shown otherwise, it can be useful to evaluate the donor's understanding of decisions, allowing attorney’s to consider whether the donor is losing capacity and if so, at what rate of deterioation. It would also allow the attorney to encourage the donor to participate in decision-making as necessary. To say someone understands requires attorney’s to know what the decision is and, if required, to present that decision in a format suitable for the donor. In some instances, this may require the attorney breaking the decision down into component parts, allowing the donor to consider smaller seqments of the question. Code of Practice, para.4.49 outlines the importance of confirming understanding, and how questions should be posed to the donor. This will avoid errors being made as to P’s functional abilities. It states as follows: 

  • The attorney should make sure the donor understands the nature and effect of the decision to be made. They may need access to relevant documents and background information (e.g., details of the person’s finances if assessing capacity to manage affairs).
  • They may need other relevant information to support the assessment (e.g., healthcare records or the views of staff involved in the person’s care). 
  • Family members and close friends may be able to provide valuable back-ground information (e.g., the the donor's past behaviour, abilities and the types of decisions they can currently make). However, their personal views and wishes about what they would want for the person must not influence the assessment. 
  • They should explain to the donor all the information relevant to the decision. The explanation should be in the most appropriate and effective form of communication for that person. 
  • The donor should be able to give a reasonable explanation of the information that was explained to them. There are different methods for people who use non-verbal means of communication (e.g., observing behaviour or their ability to recognise objects or pictures). 
  • Avoid questions needing only a ‘yes’ or ‘no’ answer (e.g., did you under-stand what I just said?). They are not enough to assess the the donor's capacity to make a decision. However, there may be no alternative in cases where there are major communication difficulties. In these cases, check the response by asking questions again in a different way. 
  • Skills and behaviour do not necessarily reflect the person’s capacity to make specific decisions. The fact someone has good social or language skills, or good manners does not necessarily mean they understand information or are able to weigh it up. 

 

The Textbook - Lasting Powers of Attorney

Craig Ward of Lundie MSc one of our Partners here at Craybeck Law wrote the Law Society’s textbook on Lasting Powers of Attorney now in its 4th edition. This means Craybeck Law has the countries leading experts to advice you when making your Lasting Power of Attorney.

 

Further Information

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