What is a Lasting Power of Attorney Mental Capacity Assessment?

A Lasting Power of Attorney (LPA)  helps individuals to appoint an attorney to manage their affairs if they are likely to become incapacitated or if they wish for someone else to help manage their affairs. The document includes decision making in relation to finances, property, future health care, personal care, and welfare decisions of the individual.

To authorise an LPA, the donor must have mental capacity. In some instances, for example following a recent diagnosis of dementia it may be prudent to obtain an LPA capacity assessment by an expert capacity assessor such as a psychiatrist.

Assessing POA mental capacity  is necessary to avoid problems including later challenges regarding the person’s decision making.

What is the role of the LPA Certificate Provider?

The Certificate Provider should ensure that the donor of the LPA is mentally capacitous to make the LPA and that there is no pressure on them to make one. The Donor should understand and retain the necessary information in order to be deemed mentally capable as per the Mental Capacity Act 2005. Once the Certificate Provider is satisfied that capacity is present the certificate can be signed. 

Who can be an LPA Certificate Provider?

There are two types of Certificate Provider. A knowledge based provider, which is someone who has known the Donor personally for over two years, or a skills based provider such as a healthcare professional such as a psychiatrist or GP.

How much does it cost to for an LPA Certificate Provider?

Different professionals will charge different rates. For a straightforward matter, a GP may be suitable if available. If assessing capacity is important or could be questioned a psychiatrist may be more suitable. Please contact us for our LPA certificate providers fees. 

Who can assess Mental Capacity for Power of Attorney?

Just because a person has a mental disorder, this doesn’t necessarily mean they lack the capacity to make a specific decision. A trained mental capacity assessor, such as a psychiatrist can determine if an individual has the mental capacity to make a decision. Our services include completing the process of mental capacity assessment for power of attorney. 

What is assessed during a mental capacity assessment for Power of Attorney?

In the context of making an LPA, a donor will need to be able to understand the following:

•  That the appointed attorney(s) will be able to have complete authority over all the donor’s financial affairs; 
• that the appointed attorney(s) will be able to do anything with the donor’s property that he/she could do; 
• that the LPA will continue to have effect if he/she is or should become mentally incapable; 
• that the LPA cannot be used until it has been registered by the Office of the Public Guardian; 
• that the donor can revoke the LPA at any time he/she likes (while he/she has mental capacity to do so); 
• the consequences of not signing an LPA. 

What form is required for a Power of attorney mental capacity assessment?

There is no statutory form for an LPA capacity assessment and typically our capacity assessors complete a report for use by the court if necessary.

If a person lacks capacity to authorise an LPA, the Court of Protection form when someone lacks capacity is the COP3 capacity assessment form. 

When a power of attorney cannot be appointed as the Donor lacks capacity, a deputy needs to be appointed to take on the role.

What is the test for Power of Attorney Mental Capacity Assessment?

There is a 2 stage test following the MCA;

1. Does the person have the mental capacity to make a decision? (Functional Test)

2. Is the incapacity to make a decision arising from an impairment or imbalance in the functioning of a person’s mind or brain?

This may be due to long-term conditions such as mental illness, dementia, or learning disability, or more acute conditions such as confusion, unconsciousness, drug or alcohol effects (Diagnostic Test).

What are The Two Types of Lasting Power of Attorney?

Health And Welfare: This grants the attorney the authority to make health and care decisions for the donor. It includes daily decisions such as food and drink, clothes and activities, and bigger decisions such as where to reside and whether to seek medical care. 

Financial and Property Affairs: This gives an attorney the power to make decisions about the properties and finances of the donor. Often, these may be day-to-day decisions, such as paying a bill or making more complicated financial choices, such as selling donor property or shares. 

Appointing an Attorney

The named attorney need not be a lawyer or anyone with professional expertise. You can appoint someone like your spouse, a member of your family, a colleague, or a professional. A person must be 18 or older to create an LPA and have the mental capacity to agree to do so.

Why a Mental Capacity Assessment is important for obtaining Power of Attorney?

When preparing a lasting power of attorney, if your mental capacity is challenged at a future date, the document could be overturned by the court, meaning that your wishes will not be fulfilled. If you or your loved one has an underlying a mental disorder, for example dementia, stroke or depression, mental capacity should be assessed to avoid future complications.

If you are a solicitor and have a client who has impaired mental capacity and require further information, please get in touch.