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Lasting Power of Attorney Mental Capacity Assessment

A Lasting Power of Attorney (LPA) is an essential legal document that grants an individual the authority to make decisions on behalf of another person, referred to as the donor, in the event they are unable to do so themselves due to a lack of mental capacity. Once registered, the LPA ensures that the appointed individual, known as the attorney or donee, can make decisions regarding the donor’s property and finances, as well as health and personal welfare. These decisions, made by the attorney, carry the same legal weight as if the donor had made them, provided the donor had the mental capacity to do so at the time.

A Lasting Power of Attorney can be tailored to address two distinct areas: personal welfare or property and financial affairs. A personal welfare LPA covers decisions related to the donor's health, well-being, and social care, while a property and financial affairs LPA concerns matters like managing finances, paying bills, and property maintenance.

What Decisions Can the Attorney Make under a Lasting Power of Attorney?

An attorney appointed for personal welfare matters can make several decisions on behalf of the donor, including but not limited to:

On the other hand, an attorney appointed for property and financial affairs decisions can make a broad range of financial decisions for the donor, subject to any limitations set by the donor when creating the LPA. These decisions may include:

The Role of Mental Capacity in Lasting Power of Attorney

A crucial aspect of the LPA process is determining whether the donor possesses the necessary mental capacity to appoint an attorney. Mental capacity refers to the donor’s ability to understand the nature and consequences of the decision they are making. A mental capacity assessment can help ascertain whether the donor has the capability to create a Lasting Power of Attorney and appoint an attorney.

Though not everyone requires a mental capacity assessment to create an LPA, it becomes necessary if there is reasonable doubt about the donor's mental capacity. In such cases, a professional mental capacity assessment is recommended to ensure that the donor is fully aware of their decision to appoint an attorney. This assessment becomes especially valuable if the validity of the LPA is later challenged. It provides a record confirming that the donor had the mental capacity at the time the LPA was signed, which can help defend the LPA's validity in the future.

The Importance of Professional Assistance for Mental Capacity Assessments

At Simply Social Work, we offer professional services to carry out Lasting Power of Attorney mental capacity assessments. These assessments can be for personal welfare matters or property and financial affairs, as these decisions are treated as separate and require individual evaluations. When instructing a professional for an LPA mental capacity assessment, it’s important to recognise that each aspect of the LPA (personal welfare and property/financial affairs) may require its own assessment.

Our team ensures that the mental capacity assessment thoroughly evaluates whether the donor can make informed decisions about appointing an attorney. This includes determining whether the donor understands the implications of their choice of attorney and whether they believe their appointed attorney is trustworthy, competent, and capable of fulfilling the duties required. Furthermore, the assessment also confirms whether the donor has the mental capacity to choose the specific arrangements for their attorney, such as whether they wish the attorney to act jointly, jointly and severally, or separately for certain matters.

The Role of the Certificate Provider

When creating a Lasting Power of Attorney, the donor is required to have the signature of at least one certificate provider. In certain situations, two certificate providers may be needed. The certificate provider’s role is to confirm that the donor fully understands the purpose of the LPA, as well as the scope of the authority the attorney will have. The certificate provider must also verify that no undue influence, fraud, or coercion was used in the decision to create the LPA.

The certificate provider can either be someone chosen by the donor who has known them for at least two years or a professional with the necessary skills and expertise to provide the certificate. In addition to the certificate, a mental capacity assessment may also be required to ensure that the donor had the mental capacity to create the LPA at the time it was signed. This can be particularly beneficial if the validity of the LPA is questioned after registration, as it provides further evidence that the donor was mentally capable when making the decision.

What Happens if a Person Lacks Mental Capacity to Appoint Attorneys?

If, after conducting the mental capacity assessment, it is determined that the donor lacks the necessary mental capacity to create a Lasting Power of Attorney, they cannot proceed with appointing an attorney. In such instances, we can help complete a COP3 form, which documents the assessment of the donor’s mental capacity concerning managing their affairs. If required, this form can also support a deputyship application, allowing someone to be appointed by the court to make decisions on the donor’s behalf.

Professional Services for LPA and Mental Capacity Assessments

If you need assistance with creating a Lasting Power of Attorney, or if you require a professional to provide a mental capacity assessment, Simply Social Work can provide the necessary expertise. We are experienced in acting as certificate providers for LPAs and conducting thorough mental capacity assessments. Should you wish to instruct us for these services, please do not hesitate to contact us to discuss how we can assist you in ensuring that the process is carried out correctly and legally.