Lasting Power of Attorney (LPA) Mental Capacity Assessment

Created: 5/24/2024

One of the most common mental capacity determinations we are instructed to make is in relation to the appointment of a Lasting Power of Attorney.  A lasting power of attorney is a legal document that, once registered with the Office of the Public Guardian, enables a person (known as the donor) to appoint another person or people (known as the donee and often referred to as the attorney) to make decisions for them at such a time that they no longer have the mental capacity to make the decision themselves.  The decisions the donee of a Lasting Power of Attorney (or LPA) can make are far reaching and either relate to health and welfare decisions or decisions relating to property and financial. In the case of property and financial affairs attorneys, the donor can make provision for the attorney(s) to act immediately (with the donee's permission) as well as when the donor loses mental capacity. Personal welfare decisions can include:

• daily routines, for example washing, dressing, eating
• medical care
• moving into a care home
• life-sustaining treatment

Financial decisions that the donee of a LPA can make include:

• managing a bank or building society account
• paying bills
• collecting benefits or a pension
• selling a home

Over the years that we have been making mental capacity determinations to appoint a LPA, we have been struck by the variations in mental capacity assessments and, in our opinion, they have not always taken everything into account that they should have.  It is not sufficient when making a LPA mental capacity determination simply to ask the person, "who would you like to make decisions for you" or "who would you like to look after your money".  Simplifying a LPA mental capacity determination to these questions runs the risk of supporting a person to appoint attorneys without fully understanding what is being done. For several years, there was little judicial guidance on the matter, although this has not been the case since 2022 in the case of The Public Guardian v RI & Ors [2022] EWCOP 22 (07 June 2022) It was determined that the salient information that a donor needs to understand, retain and weigh-up is:

• The effect of the LPA
• Who the attorneys are
• The scope of the attorneys' powers and that the MCA 2005 restricts the exercise of their powers.
• When the attorneys can exercise those powers, including the need for the LPA to be executed before it is effective.
• The scope of the assets the attorneys can deal with under the LPA.
• The power of the donor to revoke the LPA when he has capacity to do so.
• The pros and cons of executing the particular LPA and of not doing so.

As you can see, significantly more than simply asking who the person would like to manage their money or make decisions on their behalf.