Sometimes, however, the person being assessed may be reluctant or unwilling to engage in the assessment process. These situations can be emotionally sensitive and legally complex for families and professionals alike.

At Thornton & Lee, our experienced team of mental capacity assessors regularly supports families in these difficult circumstances. We understand that people may feel anxious, fearful, confused, or distressed about the assessment process, and we take a compassionate, person-centred approach aimed at reducing distress and maximising engagement wherever possible.

Importantly, a refusal to engage with a mental capacity assessment is not, in itself, evidence that a person lacks mental capacity. The Court of Protection still requires robust evidence within the COP3 form demonstrating that, on the balance of probabilities, the person is unable to make the relevant decision because of an “impairment of, or disturbance in the functioning of, the mind or brain”, in line with the Mental Capacity Act 2005.

Why might someone refuse to engage in a COP3 mental capacity assessment?

There are many reasons why a person may appear reluctant to participate in a deputyship mental capacity assessment, including:

• Fear or anxiety about losing independence or control
• Previous negative experiences with professionals
• Symptoms associated with mental illness or cognitive impairment, including paranoia, confusion, or lack of insight
• Communication difficulties
• Trauma or distressing past experiences
• Misunderstanding the purpose of the assessment
• Concerns about finances, care arrangements, or decision-making being taken away from them

In many cases, reluctance to engage does not stem from deliberate refusal, but from underlying emotional, psychological, or cognitive difficulties.

What is the legal framework for COP3 mental capacity assessments?

COP3 deputyship assessments are carried out in accordance with the Mental Capacity Act 2005 and its accompanying Code of Practice.

The Mental Capacity Act is built around five key principles, including:

• A presumption that every adult has capacity unless proven otherwise
• The requirement to take all practicable steps to support a person in making their own decision
• Recognition that a person is entitled to make an unwise decision if they have the capacity to do so

Under the Act, a person lacks capacity only if they are unable to:

• Understand the relevant information
• Retain that information long enough to make the decision
• Use or weigh the information as part of the decision-making process
• Communicate their decision

And, this inability must be caused by an impairment of, or disturbance in, the functioning of the mind or brain.

Mental capacity assessments are also both decision-specific and time-specific. This means that simply because a person may previously have been assessed as lacking capacity for another decision, or at another time, does not automatically mean they lack capacity for the decision currently before the Court of Protection.

The Court expects assessors completing COP3 forms to gather balanced, evidence-based information and to make genuine efforts to support the person’s participation in the assessment process.

Our approach at Thornton & Lee; Preparation and background information are key

At Thornton & Lee, careful preparation is central to our assessment process.

Before arranging an appointment, our assessors gather detailed background information to help us understand the person’s individual needs, circumstances, communication style, and any potential barriers to engagement.

This may include:

• Speaking with family members, carers, or professionals involved in the person’s care
• Reviewing medical records, care plans, and relevant documentation
• Understanding diagnosed or suspected cognitive impairments or mental health conditions
• Identifying how symptoms may affect communication, understanding, or engagement during the assessment
• Exploring whether there is a trusted individual who could help reassure the person during the appointment
• Considering the most suitable environment for the assessment, such as the person’s home or another familiar setting

This preparation allows us to tailor the assessment approach to the individual person, rather than taking a one-size-fits-all approach.

Reducing distress and building rapport

Our assessors understand that people often engage more effectively when they feel safe, respected, and understood.

Where appropriate, we may initially discuss familiar or reassuring topics, such as hobbies, interests, family life, or previous occupations, before moving into more formal assessment questions.

We also:

• Allow additional time for appointments
• Build in breaks where needed
• Adapt communication methods to suit the person’s needs
• Avoid unnecessarily distressing topics where possible
• Work sensitively around known triggers or traumatic experiences

Transparency is generally important, and wherever appropriate, we explain the purpose of the assessment clearly and accessibly. We also find that engagement is often improved where a trusted family member or professional has already helped prepare the person for the assessment in a calm and supportive way.

Can a COP3 assessment still be completed if engagement is limited?

In some cases, yes.

Even where engagement during the appointment is minimal, it may still be possible for a skilled mental capacity assessor to gather sufficient evidence for the Court of Protection.

When we are aware in advance that a person may struggle to engage, our assessors carefully adapt their questioning style and assessment structure to obtain the clearest possible evidence while minimising distress.

In addition to the interview itself, relevant supporting evidence may also be considered, including:

• Medical records
• Care plans
• Deprivation of Liberty Safeguards (DoLS) documentation
• Professional observations
• Family or carer observations

However, the Court of Protection still expects assessors to provide balanced and evidence-based conclusions, including evidence obtained directly from meeting the person.

Can a COP3 assessment be completed without meeting the person?

In most circumstances, no.

At  Thornton & Lee, our assessors cannot complete a COP3 form for submission to the Court of Protection without attempting to interview the person regarding the relevant decision.

Collateral information such as medical records and care plans can support the assessment, but they cannot replace direct assessment altogether.

If a person refuses to engage during an initial appointment, our usual approach is to carefully review the circumstances, consider whether adjustments could improve engagement, and, where appropriate, arrange a further appointment using a revised and more supportive approach.

Can an assessment still proceed if someone refuses?

Potentially, yes.

Where available evidence suggests that the person may lack capacity for the relevant decision, it may still be appropriate to attempt an assessment despite some reluctance to engage.

In these situations, our assessors carefully consider:

• Whether the assessment can safely be delayed
• Whether proceeding may cause avoidable distress
• The risks of not progressing the deputyship application
• The person’s current care, financial, or welfare needs
• Whether a supportive and proportionate approach could still enable meaningful participation

Any decision to proceed is made on a case-by-case basis and always guided by the principles of the Mental Capacity Act 2005.

In our experience, it is relatively uncommon for a person to remain entirely unable or unwilling to engage when the assessment is approached with patience, kindness, flexibility, and sensitivity. However, there are occasional situations where, despite repeated attempts, meaningful engagement is not possible. In such circumstances, it may not be possible to complete the COP3 assessment.

How Thornton & Lee can help

Applying for deputyship can feel overwhelming, particularly where a loved one is anxious, distressed, or reluctant to participate in the mental capacity assessment process.

At  Thornton & Lee, our experienced mental capacity assessors provide compassionate, legally compliant, and person-centred COP3 assessments designed to support both families and the individual being assessed.

We understand the importance of balancing:

• The legal requirements of the Court of Protection
• The dignity and wellbeing of the person being assessed
• The emotional concerns of families and carers

Our team can discuss any worries you may have, help plan the most supportive approach for your loved one, and maximise the likelihood of meaningful engagement with the assessment process.

If you would like advice or support regarding a COP3 mental capacity assessment or deputyship application, contact Thornton & Lee today for a no-obligation discussion about how we can help.

Get in touch today – https://www.thorntonlee.co.uk/#footerForm

The post What Happens if Someone Refuses a Mental Capacity Assessment for a Deputyship Order? appeared first on Thornton & Lee.

Entering into an LPA allows an individual (the donor) to effectively plan ahead for their future should they come to a point in time where their mental capacity declines. Crucially, choosing individuals they trust (attorneys) to make decisions on their behalf in the event that there comes a time they can no longer make these decisions for themselves.

Legally, the person entering into the LPA must have mental capacity to do so at the time the document is drawn up and signed.

There are many reasons why a person’s mental capacity to enter into an LPA might be questioned; some of these reasons include a learning disability, a profound mental health condition, a brain injury, or suspected/diagnosed dementia.

Here are some of the most commonly asked questions about mental capacity to enter into an LPA, and why Thornton & Lee might have been recommended by your solicitor to complete your LPA mental capacity assessment.

What is mental capacity?

Mental capacity is an individual person’s ability to make a specific decision at the point in time the decision is required.

Under the Mental Capacity Act (2005), the person must be able to:

• Understand the information relevant to the decision
• Retain that information long enough to make the decision
• Use or weigh the information as part of the decision-making process
• Communicate their decision

Mental capacity is time and date specific, and decision specific. It is possible for a person to have mental capacity for some decisions within their life, whilst also lacking mental capacity to make other decisions in their life.

What is a Lasting Power of Attorney (LPA)? 

An LPA is a legal document that allows the person (the donor) to choose trusted persons (attorneys) to make decisions on their behalf if they lose the mental capacity to be able to make these decisions for themselves.

There are two types of LPA:

Property and Financial Affairs LPA

This gives attorneys the power to make decisions including:

• Bank accounts
• Paying bills
• Selling or managing property
• Investments and pensions

Health and Welfare LPA

This gives attorneys the power to make decisions including:

• Medical treatment
• Care arrangements
• Living arrangements
• Life-sustaining treatment decisions

Both types of LPA must be signed by the donor whilst they still have mental capacity, signed by the attorneys, and then the document is formally registered with the Office of the Public Guardian before the powers contained within the LPA may be used by the attorneys.

The person entering into the LPA (the donor) can choose whether the attorneys nominated under a property and financial affairs LPA can begin using their powers as soon as the document has been registered with the Office of the Public Guardian, or only if they lose mental capacity in the future.

Whereas the attorneys nominated under a health and welfare LPA may only begin using their powers to make decisions about personal welfare once the donor has lost mental capacity to be able to make these decisions for themselves.

Does someone need mental capacity to make an LPA?

Yes, under the law in England and Wales, any person entering into an LPA must have mental capacity at the time the document is drawn up and signed.

If concerns are raised as to whether the individual had mental capacity at the time the document was drawn up, this is a serious issue and will be investigated by the Office of the Public Guardian.

Should the Office of the Public Guardian suspect that the person did not have mental capacity at the time the LPA document was executed, the LPA will be discarded as invalid, and the Court of Protection might need to make a decision about a deputy being appointed instead.

The person entering into the LPA must understand:

• What a Lasting Power of Attorney is
• Why they wish to enter into an LPA
• Who they have chosen to act as attorney and why
• The nature and scope of authority they are giving to their chosen attorneys
• The potential consequences of granting this authority

Who can assess mental capacity for a Lasting Power of Attorney?

Where no concerns are present regarding the person entering into an LPA, solicitors are often very happy to sign as the Certificate Provider within the LPA.

An LPA Certificate Provider confirms that:

• The person understands the LPA
• The person is not under any pressure or undue influence to enter into the LPA
• There is no other reason the LPA should not be created

When a solicitor has concerns that a person may not readily understand the terms which they are entering into by executing an LPA, they will approach an independent provider of mental capacity assessments for LPAs, such as Thornton & Lee.

When do solicitors request a mental capacity assessment for an LPA?

At Thornton & Lee, we see a wide range of reasons why a solicitor might approach us to complete an independent mental capacity assessment as to the person’s capacity to enter into the LPA. Some of these reasons might include:

• The person has a learning disability, a brain injury, a history of a stroke, dementia, or observed difficulties with understanding or memory.
• There are difficult family dynamics or family disputes.
• There are suspicions that the person might be unduly influenced or coerced into entering into the LPA.
• The person has communication difficulties, such as being non-verbal or requiring specialist communication aids.

Instructing Thornton & Lee to complete an LPA mental capacity assessment and provide a Court-standard robust report can help protect the validity of the LPA from future scrutiny or criticism.

Can someone with dementia still make an LPA?

Yes, however, an assessment of mental capacity to enter into an LPA must be completed with the person; this is based on their functional ability to understand, retain, use and weigh, and communicate back the relevant information regarding entering into the LPA.

Depending on the progression of the dementia and how it is impacting upon a person’s comprehension and memory, it is still possible that they may be able to enter into an LPA following an LPA mental capacity assessment with Thornton & Lee.

However, as dementia is a progressive condition, time is of the essence. It is very important that an LPA is considered. If the person agrees that this is something that they would like to set up to safeguard decision-making in their future, the earlier a mental capacity assessment appointment can be completed and the document drawn up and signed, the more this maximises the opportunity of the person being able to legally enter into the LPA with mental capacity.

If you are unsure if the person might still have mental capacity for an LPA, or if the person’s understanding and memory might have now deteriorated to the point that they can no longer legally enter into an LPA, fill out our contact form, and a friendly and professional member of the team will be in touch with you to discuss your needs with a free, no-obligation discussion of what your options might be.

What happens if the person is assessed as not having mental capacity to enter into an LPA?

At Thornton & Lee, we pride ourselves on being ethical in our approach to mental capacity assessments. If you decide to proceed with an LPA mental capacity assessment with us, and upon discussing the circumstances with you, we suspect that mental capacity to enter into an LPA may have already been lost, we will discuss with you alternative plans which would likely include you making an application to the Court of Protection to become a Deputy. 

A Court of Protection ordered Personal Welfare Deputy has legal authority to make decisions regarding a person’s health and social care needs if the person does not have mental capacity to make these decisions for themselves.

Whereas a Property and Financial affairs Court of Protection ordered Deputy has legal authority to make decisions regarding property and financial affairs for a person who does not have the mental capacity to make these decisions for themselves.

If it is unclear before the assessment whether the person may still have mental capacity to enter into an LPA, or whether they might have lost mental capacity to enter into the LPA, we will discuss this with you and the assessor preparing to complete an LPA mental capacity assessment.

If it becomes clear, despite our best efforts during the assessment, that the person does not have mental capacity for the LPA, we will then default to instead completing an assessment that you can use in an application to the Court of Protection to become a deputy instead.

There is no additional charge for this approach; you would pay the fee for an LPA assessment, and we would provide you with the specialist COP3 for mental capacity assessment for a deputyship application, in lieu of a negative LPA report.

How long does an LPA mental capacity assessment take to complete?

An LPA mental capacity assessment will explore whether the person understands and can retain and weigh up before communicating back:

• What a Lasting Power of Attorney is
• The powers they are giving to their attorney
• The consequences of granting those powers
• When the LPA might be used

The assessor will apply the two-stage test of capacity set out in the Mental Capacity Act (2005). This involves determining whether the person is unable to make the specific decision as the direct result of an impairment or disturbance of the mind or brain.

LPA mental capacity assessments generally take approximately one hour to complete. However, this can vary depending on the person being assessed, their communication style and preferences.

If two LPA mental capacity assessments are being completed; a Health and Welfare LPA assessment and also a Property and Financial Affairs LPA assessment, the appointment will take slightly longer.

At Thornton & Lee, we are skilled at putting those we are working with at ease and ensure that questions are targeted to be the least restrictive as possible, whilst also obtaining Court-standard evidence to ensure a defensible report is provided.

When should someone make an LPA?

At Thornton & Lee, we strongly recommend that all working-age adults consider entering into an LPA, due to the assurances it gives that person that those they trust will be able to act in their best interest should they lose mental capacity in the future.

However, of course, a significant change in circumstances or health can also be the catalyst to entering into an LPA.

Reasons that entering into an LPA might be considered include:

• When planning their estate
• Following retirement
• After receiving a medical diagnosis
• When supporting ageing parents

Early planning regarding entering into an LPA is key to avoid unnecessary delays down the line, legal complications, or increased fees such as when having to apply to the Court of Protection in the absence of a valid LPA.

How Thornton & Lee can help

Thornton & Lee provides mental capacity assessments for Lasting Powers of Attorney completed by experienced and professional mental capacity assessors, completed to a high Court standard, with prompt appointment availability throughout England and Wales, and quick report turnaround time.

Our LPA assessments support:

• Solicitors preparing LPAs for their clients
• Families supporting vulnerable relatives
• Individuals making pro-active plans for their future needs 

Complete our contact form here today, and a friendly and professional member of our team will be in touch to discuss your needs for assessment and offer you a no-obligation personalised quote.

The post Mental Capacity to Make a Lasting Power of Attorney (LPA): Frequently Asked Questions appeared first on Thornton & Lee.

At Thornton & Lee, we complete independent mental capacity assessments in matters involving concerns about current attorneys or revoking an existing Lasting Powers of Attorney (LPAs) for solicitors frequently.

This blog explains what happens when LPAs go wrong, and where you can go for help. It is important to start this blog by being explicitly clear that executing LPAs, whether for health and welfare decisions or property and financial affairs, can be one of the most important legal steps you take. LPAs allow your attorneys to make decisions on your behalf if you lose mental capacity in the future.

For individuals with progressive neurological conditions, such as dementia, appointing trusted attorneys helps ensure your wishes are respected and your interests protected. LPAs can also reduce the stress, delay, and expense associated with Court of Protection applications that may otherwise be required if mental capacity is lost without a valid LPA in place.

What is the Office of the Public Guardian?

The Office of the Public Guardian (OPG) is a government body operating under the Mental Capacity Act (2005). It supports and supervises people who act on behalf of individuals who lack mental capacity.

Some of the OPG’s functions include:

• Registering Enduring Powers of Attorney (EPAs) and Lasting Powers of Attorney (LPAs)
• Supervising deputies appointed by the Court of Protection
• Investigating concerns or complaints about attorneys or deputies
• Applying to the Court of Protection where action is required to protect a person who lacks capacity

It is important to note that the OPG does not carry out frontline safeguarding in the same way as local authorities. Its role is not to mediate disputes, but to investigate concerns raised and, where necessary, escalate matters to the Court of Protection.

What is the difference between the Office of the Public Guardian and the Court of Protection?

Whilst the OPG and the Court of Protection both exist to protect and support people who lack, or may lack, mental capacity, they are two distinct public bodies in England and Wales. Although they work closely together, their roles are fundamentally different.

The Court of Protection makes judicial decisions and declarations, which can include:

• Determining whether a person lacks the mental capacity to make a specific decision
• Deciding what is in the best interests of a person who lacks capacity
• Making one-off orders, for example, authorising or refusing serious medical treatment or significant financial decisions
• Appointing deputies to make ongoing decisions on behalf of a person who lacks mental capacity, most commonly for property and financial affairs, and occasionally for health and welfare
• Resolving disputes between attorneys, challenges to existing LPAs, applications for statutory wills, and authorising deprivation of liberty

By contrast, the OPG focuses on administration, registration, and supervision. Fundamentally, the OPG acts as an oversight and supervisory body to ensure that those exercising legal powers on behalf of vulnerable people are acting lawfully.

Why do Lasting Powers of Attorney go wrong?

LPAs can go wrong for a variety of reasons, including:

• Allegations of theft, financial exploitation, or misuse of funds (financial abuse)
• Attorneys acting outside their legal authority
• Challenging family dynamics or disputes between attorneys
• Concerns that the donor’s best interests are not being upheld
• Allegations that the donor lacked the required mental capacity at the time the LPA was executed

Mental Capacity Assessments and the Office of the Public Guardian

During an OPG investigation or a Court of Protection application, mental capacity assessments are often central. An assessment may be required to determine:

• Whether the person currently has the capacity to make a specific decision
• Whether the donor had capacity at the time the LPA was executed

As independent mental capacity assessors, Thornton & Lee are frequently instructed by solicitors making applications to the Court of Protection. We specialise in mental capacity assessments completed using the Court of Protection’s COP3 form.

Further information about instructing us to complete a COP3 for the Court of Protection can be found here.

When are panel deputies used?

Following an OPG investigation and the removal of an attorney by the Court of Protection, where there is no suitable family member or professional available, the Court of Protection may appoint a panel deputy.

Panel deputies are experienced professionals approved by the Court to act in complex or high-risk cases.

Paige Gouldthorpe, Head of Foster’s Court of Protection and Vulnerable Persons Team, who are approved panel deputies in Norfolk, describes the role of a panel deputy as;

“The appointment of a panel deputy represents a legal and moral responsibility. It arises at a moment when an individual, through illness, injury, or cognitive decline, has lost the ability to manage their own affairs and no trusted family member or friend is able to step into that role. In such circumstances, the Court of Protection turns to a panel deputy as a safeguard of last resort, ensuring that vulnerability is met not with neglect, but with structured care and legal protection.

A panel deputy is more than an administrator of finances. They are a court-appointed guardian of dignity, stability, and security. Acting under the authority of the Mental Capacity Act 2005, the deputy must navigate complex financial, legal, and human considerations, always guided by a single overriding principle: the best interests of the protected party. Every decision carries weight, because behind each account, asset, or liability stands a person whose independence has been compromised, but whose rights remain intact.

The deputy’s role demands vigilance and compassion in equal measure. They are responsible for preserving assets accumulated over a lifetime, ensuring that bills are paid, care is funded, and future needs are anticipated. Yet these tasks are never merely transactional. They are acts of stewardship, intended to provide continuity, reassurance, and protection at a time of profound personal vulnerability.

Panel deputies operate under constant scrutiny by the Court of Protection and the Office of the Public Guardian. This oversight is deliberate and necessary, reflecting the seriousness of the powers entrusted to them. Where decisions carry significant emotional, ethical, or financial consequences, the deputy may return to the court for guidance.”

Where can I get help if I’m concerned about an LPA or an attorney?

• If you are concerned that an attorney may be stealing or financially exploiting a donor, or if you are a donor concerned that your attorney may be financially abusing you, it is sensible to contact the police, as theft and financial abuse are criminal offences.
• If you are a donor concerned about disputes or difficult dynamics between your attorneys, you may wish to instruct a solicitor to discuss revoking the existing LPA and executing a new one, potentially including a professional attorney to reduce conflict.
• If you have concerns that an attorney is not acting in the best interests of a donor who may have lost mental capacity, you may wish to report your concerns to the Office of the Public Guardian, who can consider whether an investigation is required.
• If you believe an attorney may be acting in an abusive or neglectful manner towards a donor with care and support needs, local authorities have a duty under section 42 of the Care Act 2014 to undertake safeguarding enquiries. In such circumstances, you may wish to report your concerns to the relevant local authority.

How can Thornton & Lee help?

At Thornton & Lee, we provide independent, timely, and legally compliant mental capacity assessments, completed robustly and in accordance with the Mental Capacity Act (2005).

Our average lead time to complete a mental capacity assessment is less than seven days, and our friendly and professional team ensures that clients and their loved ones are supported and put at ease throughout both the booking process and the assessment itself.

If you require an expert mental capacity assessment or a specialist COP3 form for a Court of Protection application, please complete our contact form and a member of our team will be in touch promptly to discuss your needs.

The post What to do when Lasting Powers of Attorney go wrong, and the role of the Office of the Public Guardian, the Court of Protection and Panel Deputies  appeared first on Thornton & Lee.

This blog outlines the essential affairs to get in order, offering peace of mind for you and your loved ones.

Why It Is Important to Plan Now

Although there is no cure for dementia yet, some treatments, depending on the type of dementia, may help slow progression or manage symptoms. Nevertheless, dementia remains a progressive condition that increasingly impacts memory and cognition over time. It is highly likely that at some point you may lose the mental capacity to make key decisions about your health, welfare or finances.

Planning ahead and formalising your preferences helps ensure your wishes are respected wherever possible. Without firm plans regarding health, welfare or financial affairs, you may be at greater risk of crisis situations, family disagreement, or costly and complex court applications.

At Thornton & Lee, we are specialist providers of mental capacity assessments, and all our assessors have extensive experience supporting those with a dementia diagnosis through the assessment process.

Sorting Out Your Will

Making a will, or updating your current will, is one of the most important legal matters to consider after a new dementia diagnosis. You should ensure your will still reflects your wishes, that there have been no significant changes to your assets, marital status, children or dependants, and that you remain satisfied with your chosen executors, beneficiaries, and the division of your estate.

Can I Make a Will If I Have Dementia?

Yes. You can make a new will or change an existing one despite a dementia diagnosis, as long as you still have testamentary capacity. If your solicitor has any doubts, they might refer you to Thornton & Lee for a formal testamentary capacity assessment.

A dementia diagnosis does not automatically mean you lack testamentary capacity, but it can make your estate more vulnerable to legal challenge by individuals you have excluded from your will. For this reason, your solicitor may recommend a testamentary capacity assessment even if they have no concerns about your capacity. This ensures robust professional evidence is available via a testamentary mental capacity report, helping reduce the likelihood of a successful legal challenge to your estate after your death.

Set Up Lasting Powers of Attorney (LPAs)

In England and Wales, there are two main types of LPA:

• Property and Finance LPA – covers decisions about money and property, including banking, paying bills, and buying or selling property.
• Health and Welfare LPA – covers decisions about health, care, medical treatment, life-sustaining treatment (if you choose), where you live, and day-to-day care.

An LPA allows you, the donor, to choose trusted individuals (attorneys) to make decisions in your best interests should you lose the mental capacity to do so.

Only those with mental capacity can execute new LPAs. Once capacity is lost, the only option for someone else to manage your property and financial affairs is a Court of Protection application for a deputyship, which is more time-consuming and costly. Without a Health and Welfare LPA, decisions about your care and living arrangements, such as entering a care home, may fall to the local authority instead.

When choosing attorneys, it is vital to select individuals you trust to act in your best interests and uphold your wishes. You may wish to appoint two or more attorneys in case circumstances change for your appointed attorney. Some people choose professional attorneys, such as solicitors or financial advisors, if they don’t have a suitable family member or friend to act.  All LPAs must be registered with the Office of the Public Guardian before they can be used.

If you already have LPAs in place, review them after receiving a dementia diagnosis to ensure they still reflect your wishes and preferred attorneys. Once LPAs are executed, they should be periodically reviewed as circumstances evolve to ensure they still reflect your wishes and who you want to act.

If your memory has already been significantly affected, your solicitor may question whether you still have the capacity to execute new LPAs and whether a deputyship application may be more appropriate. At Thornton & Lee, we work with many individuals with progressed dementia who still hope to execute an LPA. Our LPA mental capacity assessment service includes completion of the COP3 form, the specialist assessment required for a deputyship application, at no extra charge if we cannot conclude you have capacity to execute a new LPA on the day, despite our very best efforts.

Having the Conversation: Your Wishes, Values and Future Care

It is essential to talk to your trusted people, such as your family, friends or attorneys, about your wishes. If you have executed LPAs, arrange a meeting with your attorneys and close family or friends to discuss:

• your preferences for future care
• your living arrangements
• medical treatments you would accept or decline
• views on life-sustaining treatment
• whether you wish to remain at home for as long as possible or would consider a care home

Making your wishes clear reduces the likelihood that they will be overlooked and helps avoid conflict or uncertainty among those trying to act in your best interests, once you have lost mental capacity.

It is also wise to write down your preferences regarding health, care or accommodation decisions. You could record a short video or audio statement about the things that matter to you, create a “living will”, or compose an advanced statement expressing how you wish to be treated.

If Capacity Is Already Lost: Deputyship and Help from Thornton & Lee

If your dementia has progressed to the point that you no longer have the capacity to make LPAs, an application to the Court of Protection will be required to appoint a deputy. This process is slower and more expensive than making LPAs, but it is essential to ensure someone has the legal authority to act in your best interests.

Without someone legally authorised to manage your property and financial affairs, your bank accounts could be frozen, bills may go unpaid, and if you need to move into a care home and fund this by selling your property, nobody would have the authority to sell it for you.

At Thornton & Lee, we undertake COP3 assessments daily. Our professional and skilled assessors are experts in understanding the Court of Protection’s requirements. All assessments are approached with the utmost kindness and respect.

Other Practical Matters to Review

You should also review:

• pensions
• insurance policies
• trusts and investments
• bank mandates and online banking access
• whether your attorneys know what is in place and how to access it

Consider advanced care planning and discussions with your GP or healthcare team about treatments you may wish to accept or decline in the future.

You may wish to contact your local authority to request a Care Act assessment to explore whether a care package could support you to stay safe and well at home for as long as possible. As your dementia progresses, you may be entitled to benefits such as Attendance Allowance, and any informal carers may also be entitled to Carer’s Allowance.

Being organised is key. Creating a folder in your home containing all important documents and contact details, such as your solicitor, GP, social worker and attorneys, can be invaluable for both your own independence and for those supporting you.

How Thornton & Lee Can Help

If you have a new dementia diagnosis and are considering executing a new will, revising your current will, or creating new LPAs, the friendly and professional team at Thornton & Lee can support you with any questions about mental capacity assessments.

To find the right mental capacity assessment option for your circumstances, please fill out our contact form here or call us today, and a member of our team will be in touch promptly to discuss your needs.

The post What Affairs to Get in Order After a Diagnosis of Dementia appeared first on Thornton & Lee.

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.

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Definitions and Legal Context

According to the Mental Capacity Act 2005, mental capacity is defined as “a person’s ability to make their own decision.” Under the Act, someone has capacity if they can understand, retain, use, or weigh up information to make a particular decision, and then communicate their choice.

Consent is defined as “a voluntary and informed decision, given freely by a person.” In health and social care, valid consent requires that the person understands what they are agreeing to and makes the choice without pressure or coercion.

Is It Possible to Have Mental Capacity but Still Refuse to Consent?

Yes – both scenarios are possible and, in fact, very common. At Thornton & Lee, we often receive enquiries about situations where a person has capacity but does not consent, or where a person lacks capacity yet appears to consent.

It might be useful to look at some real-life case studies. Using the example of a person’s mental capacity to make decisions about the management of their property and financial affairs is a good way to illustrate the difference between capacity and consent.

The Mental Capacity Act 2005 requires that, for a person to have capacity to make a decision about the management of their property and financial affairs, they must be able to understand, retain, use or weigh the relevant information regarding those affairs. According to the Act, relevant information is the key detail a person must be able to understand, retain, and use or weigh to make the specific decision.

The Court of Protection considers relevant information in relation to property and financial affairs to include:

• The nature and extent of a person’s assets
• A general awareness of income and expenditure
• A basic ability to budget
• Insight into the consequences of financial decisions, such as paying bills, managing debts, or granting access to bank accounts

Meet Bob

Bob has recently been diagnosed with Alzheimer’s disease by the local Memory Service. He has noticed his short-term memory is declining but has implemented good strategies to counteract this, such as using a diary for appointments and a notebook to remind him of daily tasks.

Bob lives at home and is independent with all of his activities of daily living. He uses online banking, knows where his accounts are, and regularly checks his balance. He has excellent oversight of his income and expenditure, all bills are paid by direct debit, and he withdraws small sums of cash weekly to cover groceries and a cleaner.

Bob lives in an owner-occupied house. He knows his mortgage is paid off, and while he hasn’t recently had his home valued, he can estimate its worth by comparing it to his neighbour’s similar property listed on Rightmove.

Bob’s son Tony is very worried about how his father’s memory will deteriorate and wants him to set up LPAs so he can help in the future. However, Bob is extremely private about his money and does not want Tony to know about his financial affairs. Bob is also concerned because Tony has previously had problems with gambling. Although Bob worries about keeping his money safe as his memory declines, he is not ready to decide who should be his attorney, and he feels Tony may not be the best choice.

Bob has mental capacity regarding the management of his property and financial affairs, but he is not consenting.

Meet Betty

Betty was diagnosed with vascular dementia seven years ago, and it is now at a moderate to advanced stage. She was forgetting to eat, neglecting her personal care, and had begun wandering outside her home late at night. Betty now lives in a care home and is no longer oriented to time or place, believing it is 1998 and that she is at work.

She still recognises her daughter Sandra, with whom she shares a close, loving relationship. Sandra visits her daily at the care home.

However, Betty cannot recall her bank accounts, denies receiving a pension because she believes she is still working, and cannot remember her property address. When asked, she sometimes gives the address of her childhood home. She no longer talks in pounds or pence, instead referring to shillings.

When asked by Thornton & Lee if she understands her money and whether she would like help, Betty replies “yes please.” When asked who she would like to help her, she consistently says “Sandra, my daughter. She is very trustworthy and good with figures.”

Betty does not have mental capacity regarding the management of her property and financial affairs, but she does consent.

What if the Family Believes Their Loved One Lacks Capacity but Refuses to Consent to an Assessment?

In our work at Thornton & Lee, we often meet people who are assumed to lack capacity for a particular decision and who also refuse to consent to an assessment. This might involve appointing someone to manage their property and financial affairs, making a Statutory Will, or being removed as a trustee via the Court of Protection.

In such cases, we may consider completing the mental capacity assessment in the person’s best interests. According to the Mental Capacity Act 2005, a best interests decision is “a decision made on behalf of someone who lacks the mental capacity to make the decision for themselves.” Professionals and families must always consider the person’s wishes, feelings, and values before making a best interest decision and ensure best interest decisions aim to protect the person’s rights, wellbeing, and future.

In summary, this involves weighing up whether completing the assessment despite their refusal or inability to consent can be justified if it ultimately achieves a greater good for the person.

Our Approach

At Thornton & Lee, our assessors are skilled and experienced at engaging with even the most reluctant individuals, including those who display challenging behaviour. Our professional, warm, and holistic approach to capacity assessments is conversational, and we take time to understand the person’s needs and circumstances before the appointment. This allows us to tailor our approach, increasing the chances of putting the person at ease and minimising distress.

What Can Families Do if Their Loved One Has Capacity but Refuses to Consent?

At Thornton & Lee, we are strong advocates of honest and sensitive conversations within families. If your loved one has mental capacity for a decision, such as executing Lasting Powers of Attorney (LPAs), but is not consenting, then the assessment or legal document cannot go ahead.

We understand how frustrating and worrying this can be for families, especially when early dementia symptoms such as suspicion or paranoia may influence a person’s refusal. However, in conditions like dementia where capacity is likely to deteriorate, there may later be an opportunity to complete an assessment in the person’s best interests once capacity has been lost. At this point, a Deputyship application can be pursued via the Court of Protection instead of LPAs.

Why Are Wishes and Feelings Important if the Person Does Not Have Capacity?

Even if a person does not have mental capacity, the Mental Capacity Act 2005 requires that their wishes, feelings, and values are taken into account. This ensures that decisions made on their behalf remain respectful, person-centred, and in line with what they would likely have wanted.

If you have concerns about the mental capacity of a loved one complete our contact form here and a friendly and professional member of the Thornton & Lee team will be in touch to talk about your needs for a mental capacity assessment. 

The post What is the Difference Between Mental Capacity and Consent and Why Does It Matter? appeared first on Thornton & Lee.

Rebecca – Managing Director

Rebecca’s experience spans across adult social care, with significant experience as both a front-line Social Worker and a Social Work Manager within many different Local Authority Social Work teams, having qualified as a Social Worker in 2010. Rebecca is trained and competent at chairing high risk Best Interest and Safeguarding Planning meetings and assessing highly complex presentations of mental capacity such as issues of executive capacity. One of Rebecca’s passions is capturing a client’s wishes and feelings in situations where communication impairments are present, or in cases whereby there are complex family dynamics or safeguarding issues at play. Rebecca prides herself on putting her clients as ease during the assessment process, and often receives feedback on how clients ‘enjoyed chatting’ during their mental capacity assessment. Rebecca is a true Social Work ‘geek’ and loves reading and reflecting upon legal updates, research papers, and emerging policy to ensure Thornton & Lee are always at the forefront of Independent Social Work. Rebecca lives with her two daughters, and their French Bulldog Biscuit.

Faye – Managing Director

Bi-lingual, Faye is fluent in Norwegian in addition to being an extensively experienced and highly professional Social Worker. Coming from a family line of Lawyers and Social Workers, Faye’s legal knowledge as an Independent Social Worker is difficult to rival! Faye’s previous experience includes working across adult social care as a frontline Social Work practitioner and as a Social Work Manager including within learning disability teams, in hospital Social Work teams, and in a domestic abuse agency facilitating group therapy and one to one sessions. Faye is an expert on all matter’s adult safeguarding, also priding herself on supporting lesser experienced Social Workers to develop their skills through a training and coaching model. Faye lives with her two children and enjoys running, and when she is not working hard for Thornton & Lee, she can usually be found with her her naughty Siamese cats Koko and Kochi on her knee.

Jason – Guest Expert Mental Capacity Assessor

Dr Jason Corner is a Registered Mental Health Nurse qualifying with a 1st Class BSc in Mental Health Nursing in 2019. Jason also has a Postgraduate Certificate in Dementia Studies, an MSc in Clinical Research, and a Doctorate in Health Sciences. Jason is the Course Director for the MSc in Mental Health Nursing at a local university. Jason is a specialist in the mental health of older people, in particular those with a diagnosis of dementia. He teaches undergraduates and postgraduates a range of topics relating to mental health, with a particular focus on the assessment and diagnosis of dementia, mental state examination and the assessment and use of the Mental Capacity and Mental Health Acts. Jason is an active researcher, with a special interest in care home research. Jason recently ran from London to Brighton, being a keen ultra-matharon runner, and in his free time can be found paddle boarding the Norfolk Broads with his teenage daughter.

Hayley – Independent Social Worker

Hayley’s diverse range of Social Work experience spans children’s and adult social care, having qualified and been working as a registered Social Worker since 2016. Hayley is a qualified Best Interest Assessor, with experience of assessing Deprivation of Liberty. Hayley is skilled in alternate communication methods, and is passionate about capturing an individual’s views, especially those who are nonverbal. Hayley enjoys supporting inexperienced Social Workers to develop their professional skills and how to utilise theory in practice, and also has experience as a Lead Advanced Social Work Educator in a Local Authority Social Work Academy. Hayley’s super skill is being able to put at ease even the most anxious or socially impaired clients with her warm and open approach. Hayley has too young beautiful daughters who keeps her on her toes when not working hard for Thornton and Lee, and a very naughty but lovable sausage dog Toby.

Jo – Independent Social Worker

Jo has been working as a registered Social Worker since 2014. Jo’s experience includes working with individuals with a Learning Disability and Mental Health, as a specialist Social Worker, and leading a Deprivation of Liberty and Mental Capacity Act team as a manager. Jo’s skills include complex and challenging mental capacity assessments for the Court of Protection. Jo’s contribution to a high-profile case heard at the Court of Protection saw her win an award for implementing the Mental Capacity Act and Safeguarding. Jo is passionate about ensuring the best outcomes for all, priding herself on capturing an individual’s voice. Jo has a creative approach to mental capacity assessments and is skilled in utilising pictures, objects of reference, and Makaton. Jo is bursting with personable Yorkshire charm and is a proud football Mum.

Keith – Company Secretary

Keith’s background is as a senior Bank Manager, where his specialities included intensive problem solving and resurrection of failing branches using a range of corporate strategies to implement new processes and resolve HR difficulties. Keith has also acted as a trustee for many years for large car sales business. In addition to bookkeeping, Keith works closely with Rebecca and Faye on how to make their creative ideas for Thornton & Lee into a reality. Keith lives with his wife, and dogs Lulu and Harry now that his children have grown up. Keith loves travelling to new counties, birdwatching, and nature.

Becki – Business Support

Our warm, friendly and efficient business support Becki may well be your first contact with Thornton & Lee. Becki takes responsibility for collating information onto our systems ahead of the assessment appointment, to ensure the assessor has a wonderful overview of not just the individual’s needs, but also what is important to them such as hobbies, interests, and social history which is extremely useful to aid putting the individual being assessed at ease. Becki lives in Yorkshire with her family, and in addition to working for Thornton & Lee Becki is also currently studying to be a Social Worker, having spent much of her career thus far working with adults and children within the health and social care sector. In her spare time Becki can usually be found at her local CrossFit gym, or relaxing at home with her bunny Benjamin.

Leanda – Business Support

Leanda has always worked in Customer service varying from retail, local government and nhs to reception at her tennis club. She loves people and a good chat, with a positive outlook puts everyone at ease. Leanda has recently moved to the coast near Dover and is loving relaxing beach walks and lunches with her husband and Cockerpoo Bill.  In between speaking to Thornton & Lee’s lovely clients, she enjoys reading (belonging to the village book club), running and has signed up for the Brighton Marathon next year.

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In England and Wales, the law underpinning how a Will must be executed is the Wills Act (1837). It is fascinating how a piece of legislation, 188 years old, still governs the rules and circumstances around making a Will legally compliant. The Wills Act (1837) sets out some legal criteria which must be followed in order to correctly and legally execute a new Will as a testator, including:

• Only a person 18 years of age or over can execute a Will.

• The testator must have testamentary capacity, eg they must be of sound mind, understand what a Will is and when it comes into effect, the extent of their estate, and how they wish to divide this among their chosen beneficiaries. 

• All Wills must be made in writing. 

• The written Will must be signed by the testator personally. 

• Two independent witnesses must observe the testator sign the Will before both witnessing the Will themselves with signatories. These two witnesses cannot be anyone set to benefit in the Will to exclude any suspicion of undue influence being placed upon the testator. 

Under the Wills Act (1837), if any of the above criteria is not met, then the Will can be challenged and scrutinised in Court, and it could ultimately be concluded that the Will is invalid. 

What happens if a person dies without a valid Will

Any person dying without a valid Will, either because the above legal criteria of the Wills Act (1837) was not followed correctly or because they failed to make a Will, would then be subject to their estate being distributed in line with intestacy rules.

Intestacy rules provide a framework for how and to whom the deceased’s estate should be distributed, which can work very well in some cases, especially if the testator leaves behind a widow who is still caring for dependents, for example. However, there are also occasions where intestacy rules prove unpopular or controversial, particularly in cases where a legally married spouse may benefit despite a long term of estrangement prior to the person’s death. Whereas a long-term partner and cohabitee of the person who has died does not set to inherit anything under intestacy rules. Intestacy rules do not take into account the quality, closeness or previous commitment of any particular relationship to the person who has died; they simply provide a hierarchy of who will benefit based on marriage and family line. 

Why is there a proposal to update the Wills Act (1837)

Given the length of time since the Wills Act (1837) and the associated changes in society, the Law Commission of England and Wales has been drafting a proposed reform of the Wills Act (1837). Reasons for this include that modern families do not always have wedded partners and modern families are increasingly blended in many wonderful ways. Advances in technology now allow for the use of electronic signatures in many other sectors, and a rise in reported predatory marriages in which a perpetrator will target an elderly person and pursue them for marriage, knowing that marriage will revoke any previous Will and make them the primary beneficiary.

Under present law, the testator and witness signatures must be done in person, and virtual witnessing is not permitted, nor is any use of an electronic signature by the testator or witnesses. There was a small window of time during Covid-19 whereby wills could be remotely witnessed, and the notion continues to provoke much controversy. Some applaud the increased convenience virtual witnessing could provide, while critics continue to speculate that the virtual/electronic testator and witness signatories may lead to an increase in covert coercion of testators by beneficiaries who are then able to hide behind computer screens. 

Critics also point out that the continued use of the Banks versus Goodfellow test (1870) for assessing testamentary capacity is less clear and robust than the Mental Capacity Act (2005). The Mental Capacity Act (2005) became statutory legislation in 2005 with its associated Code of Practice for assessing mental capacity in England and Wales, setting a standard of best practice and guidelines for mental capacity assessments.

The Mental Capacity Act (2005) sets out a standardised framework for assessing mental capacity for any decision based on the criteria that the person must understand, retain, weigh, and communicate the relevant information for the decision to be made. The Mental Capacity Act (2005) allows for a conclusion of incapacity for any particular decision if the person cannot understand, retain, weigh, or communicate the relevant information due to an impairment of or disturbance in the mind or brain. In contrast, the Banks versus Goodfellow test dates back to a Court case in 1870, lacking a robust and standardised Code of Practice for assessors, unlike the Mental Capacity Act (2005).

What is the Law Commission of England and Wales proposing to change when reforming the Wills Act 1837? 

• Removal of automatic revocation of current Will if marrying or entering into a Civil Partnership. To reduce the threat of predatory marriages, the Law Commission is proposing that getting married will no longer revoke an existing Will. If this modernisation were adopted into law, it would be the case that there would no longer be an automatic revocation of the current Will in favour of the new spouse as beneficiary upon marriage.  
  
• Electronic Wills: Electronic Wills to be introduced in line with advances in technology and electronic signatures. This means it could be possible for a testator to execute and sign their Will, or for witnesses to now sign digitally. 
  
• Lowering the age to execute a Will to 16 years. Reducing the legal age to make a Will from 18 years of age to 16 years of age. This takes into account that some teenagers may be suitably mature enough to execute a Will from 16 years of age.
  
• Standardising the legal test for mental capacity to execute a Will: Changing the legal test for mental capacity to execute a Will from the common law test of Banks v Goodfellow (1870) to the Mental Capacity Act (2005) to line up with how mental capacity is assessed in other legal areas. 
  
• Enhancing protection for testators subject to undue influence: Increased safeguards around identifying and remedying actions where undue influence upon a testator is thought to have prejudiced how the testator executed their Will. 
  
• Clarity of who can witness a Will to minimise risk of conflicts of interest: New guidelines with stricter control on who can be a witness to a Will, such as not allowing the cohabitee of a beneficiary in the Will to act as a witness, thus reducing the possibility of a conflict of interests when acting in the role of witness to a Will. 
  
• Pathways for having an informal Will legally recognised: Discretionary legal powers for a testator’s wishes for the distribution of their estate upon their death in cases where there is robust evidence of the testator’s intentions, but not all the current statutory criteria have been stringently followed to create a ‘formal Will’.

What does this mean for mental capacity assessments to enter into a new Will? 

It’s important to note that the Wills Reform recommendation made by the Law Commission of England and Wales is not legislation, nor does it change any of the current law and guidelines around executing a Will or assessing testamentary capacity at the present time. The final report will now need to be considered by Parliament, including the House of Commons and the House of Lords, before finally receiving Royal Assent and being implemented into law and practice.

For now, business continues to run as usual, following the Wills Act (1837) and utilising the common law test Banks versus Goodfellow, for all those drafting Wills on behalf of a testator or those completing mental capacity assessments with those wishing to enter into a new Will. 

At Thornton & Lee, we always approach all our assessments using best practice to work with and get the best out of the person being assessed. Whilst we will continue to use the correct test of Banks versus Goodfellow (1870) when completing testamentary assessments, you can rest assured that we always ensure we have an excellent grasp of the person’s unique needs and circumstances ahead of the appointment.

Our skilled and experienced assessors will professionally place the person being assessed at ease, so you know you are in safe and reassuring hands. If you are interested in discussing instructing us for a testamentary capacity assessment, fill out our contact form here and a friendly member of the team will promptly be in touch to discuss your assessment needs.

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Tell us more about your role and who you work with in the course of your work at Thornton & Lee?

I’m Dr Jason Corner, but please do call me Jason. I’ve been working as a Mental Capacity Assessor with Thornton & Lee since October 2023. I live in Norfolk but I enjoy travelling to meet new people in the course of my work and so I offer face to face appointments for Mental Capacity assessments across the South East of England, and I’m equally happy to meet you to complete the Mental Capacity assessment together virtually over video assessment too. In my role I enjoy working with a broad range of adults with varying needs and from diverse backgrounds, I really enjoy learning about the person I am assessing, their experiences, and what is important to them.

What are your professional qualifications?

I am a Registered Mental Health Nurse qualifying with a 1st Class BSc in Mental Health Nursing in 2010. I also have a Postgraduate Certificate in Leadership in Dementia Studies, an MSc in Clinical Research, and a Doctorate in Health Sciences. I am also a Senior Fellow of higher education, and currently the Course Director for an MSc in Mental Health Nursing at a local university. I am a specialist in the mental health of older people, particularly those with a diagnosis of dementia. I teach undergraduate and postgraduate students a range of topics relating to mental health, with a particular focus on the assessment and diagnosis of dementia, differential diagnosis of cognitive impairment, mental state examination and the assessment and use of the Mental Capacity and Mental Health Acts.

Tell us about your journey to be a Mental Capacity Assessor at Thornton & Lee?

I have always worked with people who have cognitive challenges, for a variety of reasons. I find it fascinating finding out about the person I’m meeting to complete the assessment. I always find the best assessment reports are those where I’ve really had the opportunity to discuss their history, and what is important them so that the assessment is rich and well informed. It was from my clinical role as a Nurse working in memory services that eventually led me down a more academic pathway undertaking scientific research of those experiencing dementia and working as a University Lecturer teaching the Mental Health Nurses of the future. Since working as a Mental Capacity Assessor at Thornton & Lee I’ve really relished bringing back something more person-focused into my working life. I find it extremely inspiring having an opportunity as a Mental Capacity Assessor to apply my academic knowledge and skills in real life when I meet clients during the appointment, whilst I continue to ensure I can put any worries they might have at ease as we get to know each other during the appointment.

What is your favourite part of working for Thornton & Lee?

My favourite part of working for Thornton & Lee as a Mental Capacity Assessor is arriving at the appointment to meet the client for the first time and being able to make them feel relaxed and at ease, despite the sensitive nature of the discussion that we might be undertaking together. I do this by ensuring at all times that they feel respected, and that I am both listening and respecting their independence, views and wishes, whilst I guide them through the appointment process.

Tell us something interesting about Mental Capacity assessments?

Whilst I will undertake the assessment using a ‘conversational approach’ which in essence is two people chatting through the questions together, Mental Capacity assessments are actually underpinned by quite a rigorous and structured process, which ensures that the rights of the person being assessed are protected. I really like that for a good Mental Capacity assessment how imperative it is to really understand the person I am speaking to. I love being able to weave their own story into the assessment process.

Do you have any tips for those booked to have a Mental Capacity assessment with you?

Be yourself, and I will help put you at ease to relax if you have been worrying about the assessment. I like to spend time listening to you and any specific needs you might have and will always begin our appointment by learning about you and what is important to you, it is really helpful for the assessment, but I also just love, and find it thought provoking, when hearing about people’s lives and experiences.

If you are interested in booking in a Mental Capacity assessment with Jason fill out our contact form here for a free no obligation quote.

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Edward and Betty married in their early 20s and had a wonderful day celebrating with their family and friends. Edward continued to work on the family farm, and Betty trained to be a Nurse, enjoying the opportunity to utilise her caring and attentive nature in helping care for those who were unwell. 

Edward and Betty were desperate for a family of their own and became increasingly despondent when their close friends from the Young Farmers began having babies shortly after they were married, and went on to have two or three children, whilst Edward and Betty remained just the two of them. Shortly before his 30^th birthday, Edward lost his parents in quick succession, and so Betty gave up nursing so that she could help Edward take over the full-time running of the farm. 

Just as the couple were settling into a rhythm of running the farm together, Betty received the most unexpected news, the baby that the couple had been longing for was finally going to be blessed upon them. Edward took on some additional workers to support him with the farm, insistent that his beloved Betty should have plenty of rest and put her health first, whilst her pregnancy progressed. 

When baby Alex arrived, the couple were so ecstatic and felt blessed. Edward was proud beyond belief at the beautiful, healthy baby boy and future heir to the farm. Alex grew into an attentive and loyal son. After moving away to university, where he met his wife Amy, the couple returned to North Norfolk, where they went on to have three wonderful grandchildren for Edward and Betty. Alex took on more responsibility in the running of the farm so that Edward and Betty could enjoy the countryside pursuits which bonded them in the first instance and gradually began to wind down some of their work responsibilities.

With their grandchildren now all safely grown up, with two of them enjoying life at university and the third enjoying a backpacking trip around Australia, Alex began to notice that something just didn’t seem right with Betty. After finding his mother wandering, seemingly confused in the local village at 6am on a very frosty December morning, under Amy’s sensitive guidance, Alex and his wife approached Edward to talk frankly about the worries they had for Betty. After some gentle persuasion, Edward took Betty to see the GP, and she was later diagnosed with early-onset Alzheimer’s disease. 

Over the next three years, Edward, Alex and Amy devoted their time to supporting Betty at home. Working out a good rota between them, Alex worked the farm, and between them they ensured Betty was happy and safe by taking it in turns to care for her.

However, in late January of that year, Betty was discovered lost and wandering in the village four times in a single week in the late evening. Betty was leaving her home and wandering confused in the dark and cold through the village after Edward had fallen asleep.

As a family, they came to the difficult decision that they could no longer keep Betty safe at home due to the frequency of her wandering behaviour, terrified she could slip and fall whilst confused in icy, cold January conditions, or worse still she might stumble into one of the many ponds located around the farm should she continue to leave the house unsupervised. Amy and Alex found a wonderful care home, a short drive from the farm, and Edward continued to visit his beloved wife each day, bringing her in photos of the pair of them on Cromer beach, and would sit and read to her which continued to make her smile although she variably mistook Edward for her late father as her Alzheimer’s disease continued to progress. 

A year after Betty entered the care home, Edward became acutely unwell and Alex called 999, travelling to the hospital with his father in the ambulance. After some tests, the hospital doctors delivered the devastating news that Edward had pancreatic cancer. The cancer progressed at a rapid rate, with Edward entering a hospice where he spent his last moments not even 3 months later from his cancer diagnosis. Edward’s funeral had over 200 people in attendance, mostly from the local village and farming community, and Alex delivered a wonderful eulogy on his father, who had been loved and respected by so many. 

Two weeks after the funeral, Alex visited the local Solicitors whom his parents had always dealt with to have Edward’s Will read. The Solicitor, Janice, read the Will, explaining how Betty and Edward had made mirror Wills, leaving the entirety of their estate to each other in the first instance, but upon both their deaths, Alex would inherit everything. Janice explained that as Betty has survived her husband, Edward’s estate would go to Betty in full. However, Janice then explained that as Edward and Betty had also appointed each other as sole executors of their Wills, nothing would be able to be moved forward until it had been established whether Betty could still act as executor and that, given her Alzheimer’s disease, she would need an executor capacity test. Alex explained there was no way that his mother could fulfil this role any longer, as she no longer recognised her own family, never mind understand how to take care of her late husband’s estate as executor. 

Janice explained that Betty would require an executor capacity assessment, as probate could not be progressed until Betty was legally assessed as no longer able to act as executor of Edward’s estate, and a PA14 probate form must thereafter be completed to evidence her lack of capacity for HMCTS. Alex took the PA14 form and contacted Betty’s GP to ask if they could complete a capacity to act as an executor assessment. The GP responded 4 weeks later to advise that they were ‘not qualified or insured to complete such a form’ and suggested that Alex instead ask Social Services. Alex spent 4 hours on hold to various Social Services teams, before finally having his query escalated to a senior manager who advised ‘we have no statutory responsibility to assist with form PA14, and we have long waiting lists already for the services we do have responsibility to assist with, apologising that they would not be able to assist. 

Alex went back to see Janice again at her office with the care plans from Betty’s care home, which explained how impaired she now is cognitively, explaining to Janice that no one would sign form PA14, asking Janice if HMCTS would accept Betty’s care plan as evidence of her incapacity. Janice acknowledged Alex’s frustrations but explained that without an approved professional completing an executor capacity test and probate form PA14, there was nothing she could do to progress Edward’s probate. 

Finally, after watching her husband’s frustration and wasted time being passed around without any success, Amy did a Google search of ‘who can complete an executor mental capacity test’ and ‘who can complete probate form PA14’, leading her to the website of Thornton & Lee. Thornton & Lee immediately accepted Betty’s referral for an executor capacity assessment, booking the appointment for two days later, and had the full executor capacity test report and signed form PA14 back to Alex and his Solicitor within 7 days. 

If you would like to discuss arranging an executor capacity test or completion of form PA14 you can get in touch with Thornton & Lee here and a friendly and professional member of our team will be in touch promptly to offer you a free no obligation consultation to discuss your needs.

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