Assessing Mental Capacity for Lasting Power of Attorney: What You Need to Know Before It’s Too Late

Deciding who you trust to handle your affairs if you are unable is never an easy decision. However, entering into a Lasting Power of Attorney (LPA) can offer confidence and peace of mind for both yourself and the people you love.

Under an LPA, you can choose the person(s) you trust to know and respect your wishes, and to be able to make vital decisions on your behalf if you were to lose mental capacity in the future.

All new LPAs must be registered with the Office of the Public Guardian (OPG), who specify that only a person with LPA mental capacity to enter into an LPA may do so. This ensures the person fully understands what the LPA means. This is where LPA mental capacity assessments and the role of the Certificate Provider become of the utmost importance.

At Thornton & Lee, we are a team of registered and insured professionals who specialise in LPA mental capacity assessments and acting as LPA Certificate Providers. Our role is to make sure you have a full understanding of the LPA you are entering into, and to further rule out any undue pressure or influence from others. Our highly experienced assessment team are on hand to guide you through the process, ensuring the appointment runs smoothly and reducing unnecessary delays, helping you avoid the stress and cost of later court applications wherever possible.

What is a Lasting Power of Attorney?

An LPA is a legal document in which you can choose a person(s) you trust to make important decisions on your behalf if, at some point in the future, you are unable to make those decisions yourself.

There are two types of LPA:

1. Health and Welfare LPA. Covers decisions about care, medical treatment, or where you live. Your attorneys can only make decisions under this LPA if you lose mental capacity.
2. Property and Financial Affairs LPA. Allows your attorneys to manage your money, pay bills, access your bank account, or sell your home. You can decide whether attorneys can act immediately once the LPA is registered with the OPG (with your consent), or only if you later lose mental capacity.

Having an LPA in place gives you and your family peace of mind that, should the time come when you cannot make these decisions yourself, you have already chosen trusted attorneys to act in your best interests.

Choosing Your Attorneys

When choosing an attorney, it is important to pick someone you trust to uphold your wishes and act in your best interests.

• Many people appoint family members or long-term friends.
• Others may choose a professional, such as a solicitor, if they do not have someone suitable within their personal network.

What is an LPA Certificate Provider?

An LPA Certificate Provider is an independent person who signs the LPA document to confirm that:

• The person entering into the LPA is doing so voluntarily.
• They are not under any undue influence or coercion.
• They fully understand the LPA and the legal powers it grants.

This role is a key safeguard to ensure the LPA is valid and legally secure.

What is Mental Capacity in the Context of an LPA?

Under the Mental Capacity Act 2005, mental capacity is defined as the ability to make your own decision at the time it needs to be made.

It is important to note:

• Mental capacity is decision-specific – a person may be able to make some decisions but not others.
• Mental capacity can change over time.
• A person should be assessed at the point the decision needs to be made, and ideally when medically well and free from temporary factors such as illness or infection.

A person is considered to have capacity if they can:

1. Understand the information relevant to the decision.
2. Retain that information long enough to use it.
3. Weigh up the information to make the decision.
4. Communicate their decision (verbally, non-verbally, or using aids if required).

If a person cannot do one or more of these steps due to an impairment or disturbance in the mind or brain, then they lack mental capacity for that particular decision.

The OPG requires all persons entering into an LPA to have capacity and to make their decision freely. This ensures individuals are safeguarded, protected from exploitation, and that their wishes are respected.

What are the Risks of Not Having an LPA?

It is really important to consider making an LPA as early as possible. At Thornton & Lee, we see families who plan ahead, but also many who leave it too late.

If a person no longer has capacity, they cannot enter into an LPA. Families may then face:

• Problems accessing bank accounts to pay urgent bills without a property and financial LPA.
• Local authorities making care decisions, overriding family views, if no health and welfare LPA is in place.
• Time consuming and costly applications to the Court of Protection for a Deputyship Order.

Once capacity is lost, a Court of Protection Deputyship Order is the only option. This process can be far more expensive, stressful, and time-consuming than setting up an LPA while the person still has capacity.

At Thornton & Lee, we can usually book an LPA mental capacity assessment appointment within seven days, reducing the risk of delays and ensuring the new LPA is completed as soon as possible.

Do I Need an LPA Mental Capacity Assessment, a Certificate Provider, or a COP3 for Deputyship?

When you contact us, we will discuss your circumstances and recommend the most suitable option:

• LPA Certificate Provider Service – Confirms understanding and absence of undue influence. Best for those without significant memory or understanding problems. From £150.
• LPA Mental Capacity Assessment – Includes a comprehensive, court-standard report and our assessor acting as Certificate Provider (if capacity is confirmed). Recommended where there are complex situations, family disputes, or medical conditions affecting memory/understanding. From £495.
• COP3 Mental Capacity Assessment – If capacity has already been lost, we can complete a COP3 in support of a Court of Protection Deputyship Order application. From £395.

Thornton & Lee case studies 

• Ernest is 75 years old and sadly lost his wife two years ago, and so has moved out of the county to a new area for a fresh start. Ernest has a daughter who he is very close to, but she lives the other side of the county. Ernest has no significant health conditions, and is fully independent with all his activities of daily living. Ernest wants to enter into a new LPA, appointing his daughter as attorney, and plans to do the paperwork himself on his computer. However, being new to the area, he has not yet established himself and does not know anyone who can act as his Certificate Provider. Ernest requires Thornton & Lee’s LPA Certificate Provider service. 

• Sally is 81 years old and lives with her husband Michael. Sally was diagnosed with Alzheimer’s disease two years ago. Sally has a team of carers attending three times each day to support with personal care. Sally is sometimes very lucid and can tell others exactly what she wants. At other times, Sally is observed to be a little confused and is not always oriented to time, place, or person. Sally and Michael have a close relationship with their granddaughter Elizabeth, who lives nearby, and Elizabeth thinks it’s a good idea to set up new LPA’s for Sally. Sally requires Thornton & Lee’s LPA mental capacity service, which includes completion of a COP3 for a Deputyship application at no additional charge if, despite best efforts, the assessor cannot conclude Sally has LPA mental capacity. 

• Geoffrey is 61 years old and is living in a nursing home as a result of an acquired brain injury after he was involved in a motorcycle crash five years ago. Geoffrey requires all his care to be delivered in his bed, as he is no longer mobile following the accident. Geoffrey is able to communicate some choices with his care team, such as what jumper he would like to wear or whether he would prefer a hot or cold drink. Geoffrey recognises his sister Gemma and is always pleased to see her and recognises her as a familiar and trusted person. However, Geoffrey is constantly disoriented to time, place, and circumstances. The nurses have to predict and meet all of Geoffrey’s needs in his best interests, and he cannot reliably ask for help or make his needs known to others. Geoffrey requires Thornton & Lee’s COP3 mental capacity assessment service for a Deputyship application. 

Friendly and Professional Mental Capacity Assessors

At Thornton & Lee, we understand that entering into a new LPA is one of the most important steps you can take to safeguard your future. The validity of your LPA depends on having the right mental capacity assessment and Certificate Provider support at the right time.

Whether you are:

• Seeking reassurance about a loved one’s capacity,
• Facing family disputes, or
• Managing a new medical diagnosis that could affect mental capacity,

Please don’t wait until difficulties arise. Fill in one of our contact forms today, and a professional member of our team will be in touch to discuss your circumstances and the services that best suit your needs, giving you peace of mind and the protection required for your future.