Lasting Power of Attorney Mental Capacity Assessment
What is a Lasting Power of Attorney Mental Capacity Assessment?
A Lasting Power of attorney, or LPA, is a legal document that authorises a person to make decisions on behalf of another person (the donor) if they lack the mental capacity to make the decisions themselves. A Lasting Power of Attorney will allow a person (the attorney or donee) to make decisions relating to property and finances or health and welfare decision that are as valid as decisions made by the person themselves if they were able to make the decisions themselves.
A Lasting Power of Attorney can either be for personal welfare matters or property and financial affairs matters. The decisions a personal welfare attorney can make might include;
- where the donor should live and who with
- the donor’s day-to-day care, including diet and dress
- who the donor may have contact with
- consenting to or refusing medical examination and treatment on the donor’s behalf
- arrangements needed for the donor to be given medical, dental or optical treatment
- assessments for and provision of community care services
- whether the donor should take part in social activities, leisure activities, education or training
- the donor’s personal correspondence and papers
- rights of access to personal information about the donor, or
- complaints about the donor’s care or treatment
The decisions a property and financial affairs attorney can make (unless restricted by the donor) might include;
- buying or selling property
- opening, closing or operating any bank, building society or other account
- giving access to the donor’s financial information
- claiming, receiving and using (on the donor’s behalf) all benefits, pensions, allowances and rebates (unless the DWP has already appointed someone and everyone is happy for this to continue)
- receiving any income, inheritance, or other entitlement on behalf of the donor
- dealing with the donor’s tax affairs
- paying the donor’s mortgage, rent and household expenses
- insuring, maintaining and repairing the donor’s property
- investing the donor’s savings
- making limited gifts on the donor’s behalf
- paying for private medical care and residential care or nursing home fees
- applying for any entitlement to funding for NHS care, social care or adaptations
- using the donor’s money to buy a vehicle or any equipment or other help they need
- repaying interest or capital on any loans taken out by the donor
A Lasting Power of Attorney mental capacity assessment is an assessment to determine whether the donor has the mental capacity to appoint an attorney or attorneys. Not everyone who appoints attorneys requires a mental capacity assessment when appointing attorneys but if there is reasonable belief that the donor lacks the mental capacity to appoint an attorney, then a Lasting Power of Attorney mental capacity assessment is advisable because it demonstrates that a person had the mental capacity at the time the Lasting Power of Attorney was signed. If later down the line the validity of the Lasting Power of Attorney is called into question, the Lasting Power of Attorney mental capacity assessment will be used to defend any such challenge.
I can be instructed to complete a Lasting Power of Attorney mental capacity assessment for health and welfare decisions and property and financial affairs decisions. Because they are two separate decisions, two separate mental capacity assessments might be required. It is important when instructing a Lasting Power of Attorney mental capacity assessor to ensure that they are treated as two separate assessments.
A Lasting Power of Attorney mental capacity assessment will explore whether the donor has the mental capacity to decide whether the proposed attorney is trustworthy, competent and reliable. Also that they have the skills and ability to carry out the tasks expected of an attorney. They must also be able to decide whether they want their attorneys (if they appoint more than one) to act jointly, jointly and severally or jointly in respect of some matters and jointly and severally in respect of other matters.
Do you require a professional to certify mental capacity for a Lasting Power of Attorney?
If you’re in the process of creating a Lasting Power of Attorney (LPA) for yourself or a client, you may have noticed that section 10 requires the signature of at least 1 certificate provider (2 in certain circumstances). The role of the certificate provider is to certify that the donor understood the purpose of the Lasting Power of Attorney and the scope of the authority conferred under it when they signed it. Also, the certificate provider confirms that no fraud or undue pressure was used to induce the donor to create the Lasting Power of Attorney and there is nothing else which would prevent the Lasting Power of Attorney from being created. The certificate provider can either be someone who has been chosen by, and has known the donor for at least 2 years or has been chosen by the donor as someone with relevant skills and expertise to act as a certificate provider.
Although a certificate provider’s declaration is sufficient to register the Lasting Power of Attorney, in some circumstances it is decided that a mental capacity assessment is also required to demonstrate that the person had capacity when they appointed their attorney. This can be particularly useful if, after the LPA has been registered, someone calls into question whether the person did actually have capacity to appoint an attorney. Not only will there be a professional declaration, there will also be evidence that the person had capacity at the time the decision to appoint an attorney was made.
I have the relevant skills and expertise to be instructed as a certificate provider for your Lasting Power of Attorney and to complete a mental capacity assessment for a LPA, please get in touch with me if you would like to instruct me as certificate provider for a Lasting Power of Attorney or if you would like to instruct me to complete a mental capacity assessment for any other reason.