Mental Capacity

How to show mental capacity to make a Lasting Power of Attorney

A Lasting Power of Attorney (LPA) can be an incredibly helpful way of allowing a person you trust to manage your affairs once you are no longer capable.

Ideally, an LPA should be executed well in advance of any incapacity. But so long as the person signing the document still understands its full meaning and effect, it is still possible for them to sign a valid LPA.

The benefits of an LPA

There are two different types of LPA, one in respect of health and welfare and one which relates to financial matters. By putting them in place while you are able to, your Attorney will be able to act on your behalf in the future, should you become unable to manage your own affairs.

A health and welfare LPA will only be activated once capacity has been lost. A financial LPA can be used before that time so that an Attorney can help someone manage their affairs, for example, by going to the bank on their behalf.

Proving mental capacity when making an LPA

With the onset of a degenerative disease, such as Alzheimer’s disease, many people realise that they will need an LPA to enable someone they trust to act on their behalf.

There will come a point when they lack the mental capacity to put an LPA in place, but at the onset of a degenerative disease there is often still time to arrange their affairs, provided they can demonstrate that they have sufficient mental capacity to understand the effect of the documents they are signing.

The Mental Capacity Act 2005 states that to have capacity to execute an LPA, an individual must have all of the relevant information about LPAs, be able to retain the information and be able to consider the information and make the decision to make an LPA.

No-one may influence them in their decision and they must be able to communicate it, even if it is only by movement or signs.

Once someone has been diagnosed with a degenerative disease, it is always advisable to have an assessment of their capacity carried out before the LPA is executed. This can be done by a GP or social worker, who can also witness the document.

If someone lacks the mental capacity to make an LPA, then their relatives can make an application to the court for a Deputyship Order. This can be a lengthy and expensive process with more ongoing costs than those associated with an LPA.

The best option is usually to sign an LPA well in advance of when it is needed. It does not need to be put into force until such time as capacity is lost.

If you would like to speak to an expert in LPAs and Wills, ring us on 01243 216900 or email us at info@legalmatters.co.uk.

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