Mental capacity and mental health law

A Lasting Power of Attorney (LPA) is a legal document that allows the ’donor’ to appoint one or more trusted people (known as ’attorneys’) to make decisions on their behalf if they become unable to make those decisions in the future. These decisions may be in relation to:

1. the donor's personal welfare or specified matters concerning their personal welfare, and

2. the donor's property and affairs or specified matters concerning their property and affairs.

Capacity refers to a person's ability to make a specific decision at the time that decision needs to be made.

When creating an LPA, the person making it must understand:

• what a Lasting Power of Attorney is

• the powers they are giving to their attorney(s)

• when those powers can be used

• the potential consequences of appointing an attorney.

Under the Mental Capacity Act 2005, a person should be assumed to have capacity unless it is established otherwise. Having a diagnosis such as dementia, a learning disability, brain injury, or mental illness does not automatically mean someone lacks capacity. Capacity must be assessed in relation to the specific decision being made.

A solicitor will consider capacity during the process of preparing and signing the LPA.

As part of their role, the solicitor will:

• meet with and speak to the person making the LPA

• ensure they understand the purpose and effect of the document

• check that they are making the decision freely and without pressure from others

• consider whether there are any concerns about their ability to understand, retain, weigh up, or communicate the relevant information.

In many cases, the solicitor can be satisfied that the person has capacity through discussion with them. However, where there are concerns about capacity, the solicitor may recommend obtaining a medical opinion or an assessment from an appropriate professional before proceeding.

Capacity is assessed at the time the LPA is signed, as this is when the individual must have the ability to make the decision to grant the powers.

Yes. If a person has already lost the mental capacity required to make an LPA, it is no longer possible for them to create one.

In those circumstances, an application can be made to the Court of Protection for the appointment of a Deputy.

A Deputy is appointed by the Court to make decisions on behalf of someone who lacks capacity. Depending on the individual's circumstances, a Deputy may be appointed to manage:

• property and financial affairs

• certain health and welfare decisions (although these appointments are less common).

The Deputy must act in the person's best interests and is subject to ongoing supervision by the Office of the Public Guardian.

The Court of Protection process is generally more time-consuming and costly than putting an LPA in place whilst a person still has capacity, therefore it is generally advisable to make considerations for an LPA as soon as possible.