How does the law define a person’s capacity to make a decision and how should capacity be assessed?
Our solicitors at My Local Solicitor Ltd are specialists in the provision and execution of Lasting and Enduring Powers of Attorney.
Central to the registration of LPAs is the donor’s capacity.
How does the law define a person’s capacity to make a decision and how should capacity be assessed?
Presuming someone has capacity
- The starting assumption must always be that a person has the capacity to make a decision, unless it can be established that they lack capacity.
Understanding what is meant by capacity and lack of capacity
- A person’s capacity must be assessed specifically in terms of their capacity to make a particular decision at the time it needs to be made.
Treating everyone equally
- A person’s capacity must not be judged simply on the basis of their age, appearance, condition or an aspect of their behaviour.
Supporting the person to make the decision for themselves
- It is important to take all possible steps to try to help people make a decision for themselves.
Assessing capacity
Anyone assessing someone’s capacity to make a decision for themselves should use the two-stage test of capacity.
- Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? (It doesn’t matter whether the impairment or disturbance is temporary or permanent.)
- If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?
- Does the person have a general understanding of what decision they need to make and why they need to make it?
- Does the person have a general understanding of the likely consequences of making, or not making, this decision?
- Is the person able to understand, retain, use and weigh up the information relevant to this decision?
- Can the person communicate their decision (by talking, using sign language or any other means)? Would the services of a professional (such as a speech and language therapist) be helpful?• Is there a need for a more thorough assessment (perhaps by involving a doctor or other professional expert)?
- Only qualified solicitors at My Local Solicitor Ltd conduct meetings with prospective donor’s and their family and so you can be assured that the best possible service is being provided to assist at those important moments.Contact us on 01244 478 730 if you have concerns about capacity and what it may mean for you.
Could this be YOU? 7 common myths about LPAs;
- I am too young to have an LPA…
In ideal world everyone over the age of 18 would have an LPA in place. The reason for it is harsh but true: we simply don’t know what’s around the corner.
Although having an LPA is not mandatory, it probably should be.
Let’s think about it for a minute. If you drive a car, you are legally required to hold a valid car insurance policy. This is because accidents can happen to any of us; the 18-year-olds and the 80-years-olds. Agreed? I thought so.
If accidents can happen to any of us and at any given time, then it is logical to conclude that insuring yourself against the unwanted consequences of such accidents makes a lot of sense.
We think of an LPA as an insurance policy (with a sweet added bonus of just one single payment that lasts for a lifetime). LPAs allow you to relax in the knowledge that your affairs will continue to flow smoothly even if (for whatever reason) you are unable to tend to them yourself.
I had a client (Mrs K) who I represented by making an application to the Court of Protection to allow Mrs K to assist her 23 year old son, Luke who suffered life changing injuries in a horrific car accident. All that Mrs K wanted was to be able to access her son’s accounts, pay his bills and claim benefits for him, but she was unable to do so because of the lack of Lasting Powers of Attorney. Luke’s accounts were frozen and she could not get through to any institutions or a banks without the valid LPA. The legal process involved because of the absence of an LPA in this case took almost a year and cost Mrs K a lot in terms of stress and added costs. We obtained the relevant Court Order for Mrs K to assist Luke eventually but she was close to her breaking point by then. The entire painful and lengthy process could have been easily avoided if Luke had an LPA in place. Mrs K could really have done without such immense stress and expense on top of everything else she had to deal with following her son’s accident. She later told me that she wished she knew more about LPAs and that she didn’t understand why there was so little awareness of them. Mrs K told me that she thought LPAs were only for the elderly but I told her as I tell you, they are a basic insurance policy everyone over 18 should consider. She has since “insured” herself and successfully persuaded the rest of her family members to do the same.
If you are in a situation whereby it is too late to obtain an LPA and going through the Court of Protection is a necessity, please give us call. Here at My Local Solicitor Ltd. we will be able to help.
2. My family will take care of me…
This false premise is slightly linked with the one described above. If you are over 18 the “my family will take care of me” statement simply isn’t enough. You need to make your wishes clear in an LPA otherwise your nearest and dearest will not be allowed to make any important decisions about your finances or welfare. Instead, they will have to apply (like Luke’s mum) to the Court of Protection for a relevant order to be made. This is a much more lengthy, complex and expensive procedure.
3. All my money is in joint accounts so I don’t need an LPA for my finances…
Wrong. Without an LPA your joint account could be frozen leaving your spouse/ partner unable to access it. This is because the law is designed to protect vulnerable people from fraud and financial abuse. On balance this is a good thing as it protects those who can’t fend for themselves, but on the other hand it stops many well-meaning and honest people from assisting their loved ones with their most basic financial needs, such as paying their bills.
4. I have been diagnosed with dementia, so its too late…
Not necessarily. Here at My Local Solicitor Ltd. we are experienced in dealing with clients diagnosed with the first stages of dementia. We also run several free drop in clinics when people with dementia could obtain free legal advice on the matter. Please contact us for further details. As long as you fulfil the criteria in relation to the requirement of mental capacity when providing us with your instructions we will be able to assist you in obtaining LPAs.
5. It’s too complicated, I don’t have time for this…
Okay…the forms are rather lengthy and not knowing answers to all your legal questions could make the process of applying for LPAs rather daunting. This is why at My Local Solicitor Ltd. we are committed to making the whole process as smooth as possible for you. One of our fully qualified solicitors will visit you wherever you are, at a time to suit you. The appointment usually takes less than one hour but we can stay as long as you need. We then go away and draft your bespoke applications, provide the relevant certificates, and correspond with the Office of the Public Guardian on your behalf: so you don’t need to. Upon completion of the forms, we forward to you the registered documents for safe keeping. It is that easy. Let us do the hard work so you can relax in the knowledge that your ducks are being put in order.
6. I don’t need a solicitor…
If you are going to pay for someone to prepare your LPAs, make sure he or she is a qualified solicitor. You don’t want to waste your money on a badly drafted LPA which could cause you more problems than it’s worth. Here at My Local Solicitor Ltd. you will only ever deal with experienced solicitors that have your best interest at heart. We are regulated and authorised by the Solicitors Regulation Authority and, of course, fully insured. As solicitors, we are also legally authorised to provide the necessary certificate confirming the Donor’s mental capacity. Many people choose solicitors to act because they do not wish to be “seen” as putting any kind of pressure on a person making the LPA . They welcome an independent and unconnected professional to investigate the matter, provide sound legal advice and prepare the LPAs accordingly.
7. It’s to expensive, I cant afford it…
Bespoke specialist advice that you can trust doesn’t have to be costly. Here at my Local Solicitor Ltd. we are on a mission to provide an altogether better access to properly drafted Wills and LPAs. Please check our fee chart, you will be pleasantly surprised.
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Solicitors for the Elderly award :)
We are now members of Solicitors for the Elderly. Marta Williamson of My Local Solicitor Ltd. has been awarded the SFE Older Client Care in Practice Award. Well done Marta! SFE is a community of trusted advisers – professionally highly qualified and regulated and who also have additional skills to enable them to work with older and vulnerable clients.
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Why are Lasting Powers of Attorney important?
Lasting Power of Attorney (LPA) is a legal document authorising someone you trust to make decision on your behalf if you are no longer able or no longer want to make your own decisions.
There are two types of LPAs :-
1) Lasting Power of Attorney for financial affairs;
2) Lasting Power of Attorney for health and welfare.
There are a number of reasons why you may need someone to make decisions or act on your behalf.
- It could be a temporary situation – for instance if you are in hospital or on holidays and need help with paying your bills.
- Or it could apply in a more permanent scenario, for example if you have been diagnosed with dementia and may lose mental capacity to make you own decision in the future.
Making a LPA is empowering as it leaves you in charge. This is because it is you who selects and appoints your own attorney(s) and it is you who direct how your affairs are to be managed. My Local Solicitor limited is a law firm specialising in the preparation and registration of Lasting Powers of Attorney. We are more than happy to discuss your situation and, if instructed, tailor make LPAs to fit your particular circumstances.
Consequences of not having an LPAs;
If there comes a time in the future when you don’t have the mental capacity to make or communicate your own decisions, and you haven’t created a valid Lasting Power of Attorney it will be necessary for the Court of Protection to become involved and appoint a so called Deputy to act on your behalf. This could be a very lengthy, stressful and often expensive process. Here at My Local Solicitor Ltd we are experienced in dealing with Court of Protection matters and will be happy to assist. Having said that, we strongly recommend that you don’t wait until making such application becomes necessary. Prevention is always better than cure! We often like to compare the LPAs to insurance policy: one hopes that they will never become useful however should the worse happen LPAs are there registered and ready to use. The best thing about LPA is that it only attracts one payment. Money well spent we say.
Be careful:
If you’re married or in a civil partnership, you may have assumed that your spouse would automatically be able to deal with your bank accounts and pensions, and make decisions about your healthcare, if you lose the ability to do so. This is not the case.
Should you have any questions about any aspect of LPAs or Court of Protection matters please do not hesitate to contact My Local Solicitor Ltd on 01244 478 730 or by email: hello@my-local-solicitor.com
We are here to help!
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Lasting Powers of Attorney –risks and solutions
Donor- person making the Lasting Power of Attorney
Attorney- person appointed by a Donor to act on his/her behalf
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LPAs were introduced a decade ago to replace Enduring Powers of Attorney (‘EPAs’). Although no new EPAs could be granted after 30th September 2007, there are still many thousands which are valid and in operation. While the idea of the EPA was sound they provided little flexibility for Donors and were perceived as open to abuse. As a result, in 2005, LPAs were introduced under Mental Capacity Act. LPAs could no longer be granted only in respect of Property and Financial Affairs but now also Donor’s Health and Welfare. LPAs allowed donors to appoint attorneys and replacement attorneys in the event they or an attorney cannot act. Donors are now allowed to express his/her preferences and instructions which can be extremely helpful for the chosen attorney or attorneys in performing their role.
Problems relating to giving someone else authority to act
Initially Donors had to name people to be notified of the registration of their LPA. Furthermore a “Certificate Provider” (specifying his/her ability to assess the situation) had to provide independent verification of the Donor’s capacity and the lack of endue influence. Despite the extra hassle these initial requirements offered as barriers to fraud and abuse, regrettably, the above requirements have since been watered down. Certificate providers no longer have to indicate their professional expertise or even knowledge of the Donor. There is also no requirement to notify a third person of impending registration. Here at My Local Solicitor Ltd. we strongly believe that your certificate provider should have the relevant professional expertise. As we only employ trained and fully qualified solicitors, you will be in safe hands. My Local Solicitor will examine your personal situation with you in detail and produce the relevant certificate at no extra cost. Knowing that a qualified professional assisted you in applying and registering your LPA, it will give you and your family extra peace of mind.
Please note that the information provided on this page:
- Does not provide a complete or authoritative statement of the law;
- Does not constitute legal advice by My Local Solicitor Ltd;
- Does not create a contractual relationship;
- Does not form part of any advice, whether paid or free.