23 January 2025

Assessing mental capacity to activate a Lasting Power of Attorney

By Edward Harris, Solicitor, Hayes and Storr.

A lasting power of attorney (LPA) is a legal document that allows a person (referred to as the ‘donor’) to appoint one or more people (known as ‘attorneys’) to assist with decision making or to make decisions on their behalf.

If you have been trusted to make decisions on someone else’s behalf under a lasting power of attorney, you may be wondering when you should make such decisions.

What is ‘mental capacity’?

The Mental Capacity Act 2005 provides the statutory framework for assessing mental capacity in England and Wales, and it sets out five key principles:

  • Presumption of capacity: every adult is presumed to have capacity unless proven otherwise.
  • Maximising capacity: all practicable steps must be taken to help an individual make their own decisions.
  • Right to make unwise decisions: individuals have the right to make decisions that may seem unwise.
  • Best interests: any decision made on behalf of someone who lacks capacity must be in their best interests.
  • Least restrictive option: decisions should be the least restrictive of the person’s rights and freedoms.

How is mental capacity assessed for an LPA?

The Act sets out a two-stage test:

Does the person have an impairment of their mind or brain, whether as a result of illness or external factors such as alcohol or drug use? If so, does the impairment mean the person is unable to make a specific decision when they need to?

The Act says a person is unable to make a decision if they cannot do one or more of the following:

  • Understand the information relevant to the decision; Retain that information for long enough to make the decision;
  • Use or weigh up that information for long enough to make the decision; and
  • Communicate their decision in any way.

When should mental capacity be assessed?

Whether capacity needs to be assessed will depend on the type of LPA.

Health and Welfare LPA

You can only make decisions for the donor when they have lost mental capacity.

Property and Financial Affairs LPA

Subject to the terms of the document, you can make financial decisions from the time the LPA is registered, provided you have the donor’s consent while they have capacity.

Who can assess mental capacity?

A doctor will often conduct an evaluation, carefully assessing and balancing the relevant factors and information at hand. After the assessment, the doctor will generally write a report outlining their findings.

What happens next?

If a person loses mental capacity, a Health and Welfare Lasting Power of Attorney (LPA) can be activated to make decisions on their behalf. However, if they still have mental capacity, this LPA remains inactive. A Property and Financial Affairs LPA, on the other hand, can continue to be used based on the person’s original consent when they had capacity.

How we can help

Caring for someone with a mental impairment carries a lot of responsibility, and we are here to support you.
For further information, please contact Edward Harris in the wills and probate team on 01328 863231 or email edward.harris@hayes-storr.com.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

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