Key principles in practice

A key principle in practice is to ensure that professionals do not add to the barriers a person already experiences. Complex language, rushed conversations, unfamiliar environments, and inaccessible written materials can all undermine effective communication. In such circumstances, what may appear to be a lack of capacity may in fact reflect a failure to adapt the communication process to the individual’s needs.

Mental capacity assessments frequently involve complex communication. An individual may require additional time, repetition, simplified language, or information to be broken down into manageable stages.

They may also need support to demonstrate understanding, retain information long enough to make a decision, weigh the relevant factors, and communicate their choice. This requires careful attention to both receptive communication, which concerns how information is understood, and expressive communication, which concerns how views, preferences, and decisions are conveyed.

Reasonable communication adjustments can significantly improve the quality and accuracy of an assessment.

Accessible written materials, visual aids, pictures, symbols, and objects of reference may all assist a person to process information in a way that is meaningful to them.

Sensory needs must also be taken into account. A person with sight or hearing loss may require large print, appropriate lighting, assistive hearing support, reduced background noise, or a quieter setting. Such adjustments are often essential to ensuring that the assessment is both accurate and person-centred.

The involvement of interpreters may be crucial in mental capacity assessments, particularly where English is not the person’s first language or where they use a specialist communication method. Interpreters should be appropriately skilled, impartial, and able to facilitate understanding without influencing the decision. 

It is equally important to draw on the knowledge of those who know the person well. Family members, carers, and other professionals can often provide valuable insight into the person’s usual communication style, the meaning of particular gestures or responses, and any preparation necessary that may help them engage more effectively.

Communication tools

A range of communication tools may support fuller participation in decision-making.

Makaton, for example, combines speech, signs, and symbols to support people with learning disabilities or communication difficulties.

Eye gaze technology can enable individuals with significant speech and motor impairments to communicate using eye movement alone.

Gestures, facial expressions, and other forms of non-verbal communication may also carry important meaning, particularly where spoken language is limited or absent.

This underlines the importance of observation and active listening. It is essential to remain attentive to less obvious or unconventional forms of communication and avoid assuming that silence, delayed responses, or unfamiliar body language indicate a lack of understanding.

A genuinely responsive approach requires the assessor to adapt their communication, check understanding carefully, and respond to the individual’s cues rather than expecting the person to conform to a standardised method of interaction.

British Sign Language (BSL) is an essential means of communication for many Deaf people. It is a fully developed visual language that relies on hand movements, facial expressions, and body language. Where a person uses BSL, this must be properly recognised and accommodated as part of inclusive and lawful practice. The same principle applies across all forms of communication: the objective is to create the conditions in which the person can participate as fully as possible in the decision-making process.

Communication should never be viewed as separate from mental capacity.

The way information is presented, the way questions are framed, and the support provided to enable a person to respond can all affect the outcome of an assessment. By removing avoidable barriers and using appropriate communication strategies, professionals can ensure that capacity assessments are more accurate, more respectful of the individual, and more consistent with legal and ethical obligations.

At Thornton & Lee, we recognise that effective communication is fundamental to a robust and person-centred mental capacity assessment.

We take time in advance of each appointment to understand the individual’s preferred communication style and to identify any adjustments or support that may be required.

Our team is experienced in working with a wide range of communication methods, including accessible information, visual supports, non-verbal communication, working with interpreters, and specialist approaches where needed.

By adapting our approach to the individual, we aim to ensure that each person is given the best possible opportunity to understand, participate, and communicate their wishes clearly. 

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This enables the Land Registry to update the title.

Transferring ownership of property is a significant decision that should, where possible, be made with legal advice and guidance to ensure the legal parameters of the deed have been explained to all parties.

Where there is doubt in regard to a person’s capacity to sign the Deed, a formal capacity assessment should be considered.

The capacity assessment used for a Deed of Transfer can be completed using:

Contract capacity

Underpinned by the Fehily v Atkinson 2016 case law:

• Recognising the issue: A person needs the mental capacity to recognise the issues that must be considered, to obtain, receive, understand and retain relevant information, and to weigh this information in the balance of reaching a decision.
• Capacity for Specific Issue: The question of whether a person lacks capacity is issue-specific and should be judged in relation to the particular decision or activity in question.
• Ability to Understand: The question is not whether the person actually understood the transaction; instead, it is whether the person had the ability to understand the transaction if the consequences had been fully explained.
• Getting Help with Understanding: Getting help to understand the transaction does not prevent the person from having the capacity to understand it.

General Property and Financial capacity assessment

Underpinned by the Mental Capacity Act 2005 (where there is an appointed LPA or EPA in place):

• Is the person able to understand the information relevant to the decision, and has this information been provided in a way that the person is most likely able to understand?
• Can the person retain the information for long enough to be able to make the decision?
• Can they use or weigh that information as part of the process of making the decision?
• Can they communicate their decision?

What if the individual lacks capacity to understand and sign the Deed of Transfer?

• Mental capacity: A person cannot sign the Deed if they lack capacity to do so. In these circumstances, an appointed Property and Financial Attorney (LPA) or an Enduring Power of Attorney (EPA) can sign on their behalf.
• Property and Financial Court-appointed Deputy: In the absence of an LPA/EPA, an appointed deputy can manage the property transfer.

Deed of Gift – Transferring a property deed for free

A Deed of Gift is used to transfer a property deed without monetary exchange. This legal document confirms the transfer of property ownership without any payment or exchange of money. It is a common process for estate planning, such as parents gifting homes to children.

This type of transfer is most commonly used when gifting property or land to family during your lifetime. As with a Deed of Transfer, the donor must have mental capacity to make the gift and may require a gifting mental capacity assessment to evidence capacity for the transaction being proposed.

The gift must also be evidenced to be given of their own free will and free from any undue influence. When gifting a property, the property must typically be free from debts such as mortgages.

A Deed of Gift is also used when wishing to add someone to the deeds, such as adding a partner or family member to your deeds.

What assessment is used for a Deed of Gift?

The assessment for a Deed of Gift is underpinned by the Re: Beaney 1978 test, which focuses on the following points:

Are they capable of understanding the deed when its general purpose is explained to them in full?

The donor should be supported to understand the matter in question and recognise that they can seek legal advice where necessary. They should also demonstrate an understanding of the gift and its potential impact on their estate.

Is the level of understanding required relative to the type of transaction?

It is important to ensure their understanding is relevant to the gift being proposed.

It is also important to note that the donor may not have a legal background and therefore, it is not expected that they understand the transaction as a lawyer.

However, they should be able to demonstrate their understanding as a layperson who recognises the gift and its consequences once given.

Undue influence

The assessor must be able to demonstrate that the donor has not been pressured into making the gift and is doing so of their own free will and without influence. To support this, the donor must be seen alone, without the recipient or those who might benefit from the gift.

Explanation of the gift

The donor should be able to explain their motivation for the gift and their relationship to the recipient, particularly where they are gifting property to family, friends or a charity.

Other considerations of the gift are:

Deprivation of assets

Gifts of any kind can be viewed as a deprivation of assets, particularly where the donor is currently in receipt of care or likely to require care in the very near future. If proven, the property gifted may still be taken into account by the Local Authority.

Inheritance Tax (7-year rule)

Inheritance Tax may have to be paid after your death on some gifts you’ve given. Gifts given less than seven years before you die may be taxed depending on who you give the gift to, their relationship to you, the value of the gift, and when the gift was given.

Gift with Reservation of Benefit

If the donor continues to reside in the property without paying full market rent to the new owner, the tax benefits of the gift may be invalidated.

Non-revocable

Once a Deed of Gift is given, it cannot be taken back.

Gifting property into Trust using a TR1 form

When transferring property into Trust, a TR1 form is also used to transfer the title deeds into the names of the appointed Trustees. Accompanied by, for example, a Declaration of Trust to update ownership with HM Land Registry.

In these instances, where there might be doubt regarding the donor’s capacity, a gifting capacity assessment would be necessary to ensure the TR1 form is legally binding.

Deed of Transfer and Deed of Gift capacity assessments at Thornton & Lee

At Thornton & Lee, we recognise the importance of getting things right the first time, particularly in often time-pressured situations such as finalising a property sale or transfer.

Our assessors are highly experienced in completing the capacity assessments explored in this article and understand the evidence required to ensure a robust, evidence-based report is provided for your legal representative or HM Land Registry.

We ensure the assessment process is seamless, supportive and enjoyable to maximise your understanding and engagement.

In the unfortunate event that the donor lacks the necessary capacity to complete the Deed of Transfer, we ensure all assessments are of a Court standard with the necessary evidence to enable the appointed Property and Financial Attorney, EPA or Court-appointed Deputy to proceed with a Deed of Transfer on the donor’s behalf.

Contact our friendly and knowledgeable team today to discuss how we can support you through the assessment process and assist you in moving forward.

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A mental capacity assessment may be required in several circumstances, including when drawing up and entering into a Lasting Power of Attorney (LPA) for Property and Affairs as a donor, when considering an Equity Release or when applying to the Court of Protection for a Property and Financial Deputyship, and the person to be assessed may no longer be able to enter into an LPA.

A financial capacity assessment may also be necessary to demonstrate to an Attorney or legal representative that the donor lacks the necessary capacity, and their powers should now be activated to make financial decisions on their behalf, in their best interest. 

Financial safeguards and risks of financial abuse

Capacity assessments for financial decisions can also protect against scrutiny and the risks of future potential contests by family, such as when choosing to gift a large sum to one child over another, either in their lifetime or by Will.

The assessments aim to protect the person’s rights and demonstrate their understanding of the matter and ability to weigh up the information available to them and communicate their decision. This ensures an informed judgment has been made when considering the risks and benefits of the decision and its implications.

The assessment can also provide a financial safeguard should the person wishing to make a large gift be deemed to lack capacity and, in the absence of the assessment, be a risk to their estate and future financial security. The assessment will ensure your wishes are heard and, where possible, that no undue influence has been exerted or pressure applied to make the decision in question. 

Why are mental capacity assessments important in financial decision-making?

Mental capacity assessments are an essential component of financial decision-making, ensuring that the individual understands the relevant information and the decision to be made. All the assessments listed below have an element of financial decision-making, which is integral to evidencing mental capacity in each matter. 

Scenarios where financial decision-making is assessed, and the legal framework is used

Purchasing or Selling a Property – This can be assessed under a General Property and Financial Capacity Assessment (Mental Capacity Act 2005) or a Contract Capacity (Fehily v Atkinson 2016). The assessments ensure your understanding of the property to be sold or purchased, the impact of the transaction on your financial situation and a general understanding of your affairs. Under a contract capacity, this will more specifically explore the terms of the proposed contract. 

Equity release (Mental Capacity Act 2005) – It is important to ensure you understand your financial position, the terms of the equity release proposal and the potential impact on your future financial affairs. 

Ability to manage day-to-day financial affairs (Mental Capacity Act 2005) – A General Mental Capacity Assessment for Property and Affairs will examine your finances, including any property you own, savings, investments, income and expenditure and your ability to manage financially related day-to-day tasks more independently.

These assessments are often completed where an appointed Enduring Power of Attorney (EPA) or Property and Financial Affairs Attorney is seeking confirmation as to whether the donor now lacks capacity for financial decision-making or whether they can continue to make some or all financially related decisions. These assessments can support you or your appointed attorney, and where applicable, their legal representative, to clarify how certain decisions will need to be made and by whom. 

Executor (Mental Capacity Act 2005) – The role of an executor or administrator of an estate (where someone dies intestate) involves financial decision-making such as selling property, settling the deceased’s bills and ensuring the wishes set out in the Will are followed and those entitled to the estate receive their due inheritance. 

Trustee (Mental Capacity Act 2005) – As a Trustee, financial oversight is required for the day-to-day and long-term management of the Trust to ensure its continued success, viability and financial security for the benefit of the named beneficiaries. 

Testamentary (Banks vs Goodfellow 1870) – Whether creating a new Will or updating an existing one, your estate will be reviewed to ensure you understand the assets you are disposing of and the reasons for your decisions. This assessment is designed to ensure your wishes are respected, that those you feel are deserving are included, and to protect you from potential future claims or contesting of your Will following your death.  

Lasting Power of Attorney Property & Finances (Mental Capacity Act 2005) – When revoking or entering into a Lasting Power of Attorney for Property and Affairs, to demonstrate capacity as a donor, you must demonstrate an understanding of your general affairs, the powers you are bestowing on your chosen attorney and the reasons for doing so.

If the intended donor lacks the mental capacity to enter into an LPA for property and affairs, your legal representative or the person wishing to assist you may apply to the Court of Protection to become your Property and Financial Deputy through a P&F Deputyship Order.

This application is also assessed under the Mental Capacity Act 2005, and the assessment explores your understanding of your property and affairs, which is recorded on a Court of Protection COP3 form. 

Gifting (Re Beaney 1978 test) – As part of this assessment, your understanding of the intended gift and its potential impact on your estate is explored, alongside your wishes (past and present) and the rationale for the gift and chosen recipient.

If an individual is deemed to lack capacity to make the gift, an appointed Attorney or Deputy for Property and Affairs may wish to apply to the Court of Protection for permission to make the gift in their best interests. This application is completed on a Court of Protection COP3 form. 

Mental capacity assessments completed by Thornton & Lee

Our mental capacity assessments ensure the application of the correct legal framework to ensure every assessment is robust, evidence-based and meets a Court standard.

To maximise your understanding and engagement, all our assessors are highly trained in complex presentations and alternative communication. Our approach is always supportive, to create a calm and relaxing environment.

Our assessments meet the high standard expected when assessing complex and often challenging situations. We strive to support you, your loved ones and legal representatives to move forward. Your voice, wishes, and views will always be at the forefront of our work, and we strive to ensure your experience is positive.

Contact our friendly and knowledgeable team today to see how we can support you with an assessment to help you move forward. 

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Equity release is a product offered by a company that enables homeowners to access funds from their property. This can be used to finance home improvements, such as a new bathroom or kitchen, or to provide financial support for a loved one. It can also be used to increase pension income. Equity release is a specific type of borrowing that allows individuals aged 55 and over to access cash for their lifetime.

The two types of equity release available are:

A Lifetime mortgage – A long-term loan against property, with eligibility starting from the age of 55. Typically, a lump sum is borrowed with no monthly repayments, but interest accrues on the loan amount. The loan is repaid upon the sale of the property, for example, upon your death or if you enter into 24-hour care. 

Eligibility for a lifetime mortgage UK:

• Be aged 55 or over (applicable to each homeowner)
• Own your property in the UK
• Your property is valued at £75,000 or more
• With a minimum borrowing limit of £15,000

A Home revision Plan – This is where you sell all or part of your home to the provider at a below-market value, receiving a tax-free lump sum in return or a monthly income if you prefer this option. 

The implications, advantages and disadvantages of an equity release on your home:

Your equity release financial advisor will talk you through some of the pros and cons of your specific chosen product, which could include;

Pros:

• You will retain ownership of your home.
• Some lenders will tailor their interest rates to your individual circumstances.
• You can set aside funds in the property for inheritance purposes.
• Some lifetime mortgages can be transferred with you if you sell and purchase a new property.
• You have the flexibility to choose a lump sum or a monthly payment. 

Cons:

• Equity release will directly affect any inheritance due, such as that intended for your children.
• Equity release can have tax implications, and it is important you understand these before proceeding.
• By completing an equity release this may affect certain benefits such as Council Tax support and Pension Credit.
• Equity release is a significant decision and commitment.
• You may be paying a high level of interest on your loan, which can rapidly accrue.

What is the legal framework used in the assessment of equity release capacity, and why might an assessment be required?

The legal framework for assessing equity release is governed by The Mental Capacity Act 2005. As mental capacity assessors, we must be satisfied that the individual is able to understand, retain, use, weigh and communicate an understanding of the matter in hand. 

Many people aged 55 and over are living in properties with equity tied up within them and seek to obtain an equity release as a tax-free way to draw down on their equity and spend it as they wish in their lifetime. If a property is jointly owned, both named homeowners would need to agree to the equity release proposal in order to enter into the agreement.

An equity release capacity assessment may be required to demonstrate your understanding and capacity at the time of signing and entering into the equity release agreement. This may arise from an early or established diagnosis of a cognitive impairment or from the lender’s concerns regarding your understanding of the proposed agreement. Alternatively, it may be a precautionary measure to address potential questions from your network, such as your children. 

It is important to note that a formal diagnosis of dementia does not immediately indicate a lack of capacity with regard to the matter in hand. At Thornton & Lee, our assessors have considerable knowledge and experience in assessing individuals at various stages of their dementia journey. They use a range of tools and approaches to support your understanding and engagement with key information, ensuring to maximise your comprehension and communication. They are also individually highly skilled in complex and alternative communication and will strive to support you in conveying your understanding, views and wishes. 

Equity release where the joint or single homeowner has lost mental capacity

If the person living in their home lacks the mental capacity to make the decision regarding the proposed equity release, it can still be progressed (subject to the lender’s criteria) and agreed upon if a registered Lasting Power of Attorney (LPA), Enduring Power of Attorney (EPA) or Deputyship for property and affairs Order is in place. The latter may require a further application to the Court of Protection if not included in the original Order made to the Court of Protection.

The suitability of the equity release must be evidenced to be in the person’s best interest, such as paying for ongoing home care fees or adaptations in the home, and not be perceived as a potential deprivation of assets. If the Attorney may benefit from the equity release, they must also make an application to the Court of Protection alongside a formal capacity assessment to provide evidence why the proposal should be granted (completed on a COP3 form). 

How Thornton & Lee can support you and your lender

We understand that deciding to proceed with an equity release is a significant financial decision which can affect not only you but also your children. To ensure a robust, structured and evidence-based assessment, we ensure that all necessary pre-assessment checks have been completed and relevant information received. Including the loan document, product information and its terms and implications. This ensures the assessor can verify and support your understanding of the product’s key terms. 

Essentially, that the decision has been made free of influence, and you have considered the long-term implications of the loan. At Thornton & Lee, we take the time to understand the requirements of your lender and the key points required to ensure the assessment is conducive to your specific needs. Our assessors have extensive experience and robust knowledge of equity release and the key information required to produce a Court standard report. 

To find out how Thornton & Lee can support you with an equity release capacity assessment or an assessment for a loved one, please contact our friendly team today or complete one of our referral forms. A member of our team will then be in touch to discuss and support you through the process. 

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A gift is the transfer of money, property or possessions without expecting anything in return. For a gift to be valid under UK law, the following three conditions must be met:

• The gift is given freely and voluntarily by the donor 
• The delivery of the gift to the recipient
• The acceptance of the gift by the recipient

Gifts are given for a variety of reasons, including to express appreciation or simply in goodwill. They can also be given spontaneously as a gesture of generosity and care. Gifts can be anything of value, which can include money, property or possessions. Most commonly, gifts are given on celebratory occasions such as weddings, birthdays and religious holidays. 

When might a gift not be valid?

A gift can be invalid if given under the influence, where the donor may claim no recollection of the exchange. Gifts can be made in error or under the influence of another person. The conditions of the gift may also be questionable, as the donor may claim it was conditional rather than absolute. 

What can you give inheritance tax (IHT) free?

• You can give away up to £3,000 each tax year, which is not added to your estate’s value (the annual exemption). Any unused allowance is carried over to the following tax year. 
• You can make small gifts of up to £250 per person.
• Larger gifts can also be exempt from Inheritance Tax when the donor lives for seven years after making the gift. 
• You can give up to £5,000 to your child when they marry (when made before the wedding).
• You can give up to £1,000 to a relative or friend when they marry.
• You can give up to £2,500 to a grandchild or great-grandchild when they marry.
• You can gift a family member to help with living costs (restrictions apply)
• You can make unlimited gifts from surplus income to your spouse or civil partner (record keeping is recommended). 
• You can gift to charities (which are always exempt from IHT regardless of value).  

How is the capacity to gift assessed?

You may have been advised by your solicitor to undertake an assessment of your capacity to gift to strengthen the validity of the proposed gift, or if there may be a question around your capacity to make the gift in question. Alternatively, you may simply wish to have a formal record of your understanding of the gift, should this be required in the future, for example, if there is a potential for conflict over the gift. 

• For smaller, general gifts, the test Re Beaney (1978) is used.
• For larger, more substantial gift,s the test Banks vs Goodfellow (1870) is used. 

When assessing capacity to gift, the donor is seen alone without the intended recipient present to ensure they can speak freely and without influence. Their understanding of the gift, their motivation behind it and their understanding of any wider implications on their current estate, daily expenses and consideration for any current or future care needs are all explored as part of this assessment process to ensure a clear, robust and accurate assessment of the donor’s decision-making capacity in relation to the gift. Our mental capacity assessors are trained in the evidence gathering required to ensure a Court standard assessment is achieved. Importantly, the individual being assessed feels supported and comfortable expressing their views, wishes and motivation for the gift. 

Importantly, that in line with the very definition of a gift, the understanding that once given, the act is final and cannot be reversed. 

It is important to note that a diagnosis of cognitive impairment does not imply a lack of capacity regarding the gift in question. Our assessors are highly trained, qualified and experienced in a wide range of communication approaches and methods and will work closely with you to ensure the content is accessible and presented in a manner that best suits you. 

Gifting, Court of Protection, Attorneys, Enduring Power of Attorney and Court-appointed Property and Financial Deputies

An application to the Court of Protection may be required when making a gift on behalf of the person whose financial affairs you legally manage. For gifting applications to the Court of Protection, the legal framework is the Mental Capacity Act 2005. Gifts are often a way of supporting the person to show appreciation to family members, friends or those who support them. However, there are strict rules when gifting on someone’s behalf as the Mental Capacity Act only allows you to gift in certain circumstances (Section 12 of the Mental Capacity Act 2005). Due consideration must be given to whether the donor has the mental capacity to make the gift and whether they can participate in the decision-making process. Importantly, it needs to be evidenced that the proposed gift is in the donor’s best interest. Even when someone is assessed as lacking the necessary capacity to make a gift, their views and wishes as it relates to the gift should be sought. 

There are some payments which fall outside of section 12, which only the Court of Protection can consider:

• Making a loan from the person’s funds
• Making a large gift
• Creating a trust of the person’s property
• Living rent-free in a property owned by the person
• Selling a property for less than its value or transferring it into someone else’s name
• Changing the Will of someone who’s died by using a deed of variation to redirect or redistribute the person’s share in the estate
• Maintaining someone other than the person, such as paying for school fees 
• Removal of cash assets, which reduces the size of the person’s estate

(GOV.UK)

Whether an LPA, EPA or deputy, those responsible will need to consider several factors when determining whether to gift on behalf of the person. These include their financial situation and the potential impact on their estate at the time of the gift. They should also consider any future implications, such as future and present needs, including formal care (deprivation of assets) and support.

The intended gift should not affect their daily spending and overall income. Furthermore, any instructions or wishes contained within an LPA should be carefully considered. Importantly, the decision would need to be carefully considered to ensure it is in the person’s best interest to make the proposed gift. Would the person have wished to make this gift if they had the capacity to do so, or did they perhaps have a history of making similar gifts prior to losing capacity?

The person may have previously expressed wishes regarding gifting, which would also need to be considered. Any gift proposed should also take into account the relationship between the donor and the proposed recipient and whether it might impact upon their existing Will and intended beneficiaries. The implications of inheritance tax and the person’s life expectancy should also be considered, and we recommend seeking legal advice to support your navigation of the proposed gift and legal implications. 

Our mental capacity assessors are highly experienced in applications to the Court of Protection, including gifting capacity assessments and other matters requiring Court approval. To find out how we can support your gifting enquiry, please contact our friendly and experienced team today by phone or by completing one of our contact forms which can be found here and we will be in touch promptly to discuss your needs. 

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Trusts can be intricate in nature, but when used correctly and managed appropriately, they can be highly effective in facilitating a controlled transfer of wealth and can be integrated into a comprehensive long-term tax planning strategy. 

Types of Trusts include

• Bare Trusts
• Life Interest Trusts
• Discretionary Trusts
• Vulnerable Persons Trusts
• Charitable Trusts

Key roles in a Trust

• Settlor – The individual who establishes the Trust and deposits assets into it.
• Trustees – Those named within the Trust document who hold and administer assets or property held in a Trust for the benefit of a third party.
• Beneficiary – Trust beneficiaries are the individuals, charities or organisations for whose benefit the assets within the Trust are held and managed by Trustees. 

The responsibilities of a Trustee

The responsibilities of a Trustee can be diverse and encompass a wide range of duties, including, but not limited to:

• Managing Assets in the Trust
• Following the rules of the Trust
• Complying with the common Law Duty of Care
• Maintaining accounts and paying taxes
• Act in the best interest of the beneficiaries

The Trustee Act 2000 extended the authority of investment trustees while safeguarding the interests of beneficiaries against misuse of these powers.

Trustees are vested with the authority to make all decisions pertaining to the Trust. Their responsibilities encompass the acquisition, application, and disposition of the trust’s assets. Furthermore, they are obligated to implement the Trust’s purposes for the benefit of the beneficiaries. Additionally, they must adhere to the rules and regulations of the trust and exercise reasonable care, skill, and diligence in making decisions and managing the assets of the Trust.

Assessing the mental capacity of a Trustee

The assessment of a Trustee’s capacity is governed by the Mental Capacity Act 2005. This assessment may be necessary when concerns arise regarding the Trustee’s diminishing or loss of mental capacity to effectively perform their role and fulfil the associated duties. The removal or replacement of a Trustee can indeed be a complex process, which may be initiated through the Trust document, the Trustee Act 1925, or by submitting an application to the Court of Protection (COP3). An appointed deputy for property and affairs can apply under Section 36 of the Trustee Act 1925 to act on behalf of the individual deemed to lack the mental capacity to act as a Trustee (COP3).

We welcome referrals from professionals, legal representatives, and members of the public who require the completion of a Trustee mental capacity assessment. At Thornton & Lee, our team of qualified mental capacity assessors possess extensive knowledge and experience in assessing Trustee capacity. We understand the key salient points to be discussed and evidenced within our robust Court standard reports, and importantly, ensure that the individual being assessed is supported and comfortable throughout the appointment. Contact our dedicated team today to obtain a complimentary, no-obligation quotation and how we can assist you with a Trustee capacity assessment. 

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A COP14PADep is a notification to the person who lacks capacity or is alleged to lack capacity, whom the application relates, to notify them that someone is going to apply to become their deputy for property and affairs with the Court of Protection. 

The person carrying out the COP14PADep notification can be

• The applicant 
• A Legal representative
• An agent of the applicant 

The notification to the person who might lack capacity must be completed in person and the following points should be covered during the notification, ensuring this is delivered in a manner appropriate to their circumstances:

• Who the applicant is.
• That the application raises the question of whether P (the Protected Party who is subject to the application) lacks capacity and what that means.
• What will happen if the court makes the order that is being applied for.
• Details of the person it is proposed should be appointed to make decisions on behalf of P, in relation to their property and affairs.

The legal representative, the applicant or an agent must explain and evidence within the form the following points (4.4, 4.5, 4.6 , 4.7):

• What steps were taken to explain the application to the person who might lack mental capacity?
• To what extent did the person who might lack mental capacity appear to understand the information given?
• How did the person who might lack mental capacity respond when the application was explained to them?
• The wishes/feelings of P is expressed

Section 5 Acknowledgement:

This section is for P to tell the courts their views on the application, to be completed and returned to the person who carried out the notification within 14 days of the notification taking place. This section also establishes whether P agrees or disagrees with the proposed Order. P can choose not to complete this section, which does not affect the application and submission to the court. 

At Thornton & Lee our mental capacity assessors are experienced in delivering the above notification to P, ensuring this is explained in the most accessible manner possible, suitable to their circumstances and needs. The notification is carried out by one of our experienced and qualified mental capacity assessors as part of the same visit when completing a mental capacity assessment for a COP3 for property and affairs, ensuring this can be completed and returned to the applicant / their legal representative in a timely manner ready for submission to the courts. Please contact us via our website form to discuss this with one of our friendly assessors.

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The role of a certificate provider 

The certificate provider is an individual acting as an impartial observer to ensure that you, the donor, understands the LPAs you are entering into with no concerns regarding your mental capacity or understanding of the powers. 

What does a certificate provider do?

The key purpose of a certificate provider is to safeguard the rights of you, the donor, ensuring you are entering into your LPAs free from any coercion, pressure, or undue influence. The certificate provider needs to be satisfied that you understand the documents you are signing and that the documents are valid with the key purpose of protecting your interests. 

Key responsibilities

The certificate provider’s key responsibilities include ensuring that you, the donor, understand the powers you are bestowing upon your chosen attorneys and the key function and purpose of the LPAs you are entering into. 

A key responsibility also lies in ensuring that you are not in any way being tricked, pressured, or placed under duress to enter into your LPAs or giving the powers to your attorneys unwillingly. 

Who can act as a certificate provider?

This can be someone you have known personally for two or more years.

Or

An individual with relevant professional skills and expertise as detailed below;

• A registered health professional, including your GP

• A registered social worker

• A lawyer

• An Independent Mental Capacity Advocate (IMCA)

Who cannot act as a certificate provider?

• An attorney or replacement attorney for the LPA
• An attorney or replacement attorney in any other LPA or Enduring Power of Attorney that you’ve already made
• A member of your or your attorney’s family, including extended family
• An unmarried partner of yours or any of your attorney’s
• Yours or any of your attorney’s business partners or employees
• Anyone employed within the care home you reside in, including the owner, manager and director
• Anyone running or working for a trust corporation appointed as an attorney in a property and financial affairs LPA

Who can be present during the certificate provider meeting?

You can choose to have someone present with you during the meeting. Sometimes, you may feel this is beneficial if, for example, you have communication difficulties such as to your speech or hearing. Or, you may simply wish to have someone familiar with you on the day. It is essential that any named attorneys, however, are not present during this process as doing so will invalidate the LPAs and the certificate provider would be unable to sign due to an inability to conclude that no undue influence/pressure was at play. 

What will I be asked during the process?

• As part of a general discussion, together we will explore the following points;

• The purpose of an LPA and an ability to understand the contents of your LPA

• The powers you are bestowing upon your attorney(s) and why you have chosen them / are they trustworthy and any qualities they possess for the role

• How you wish your attorneys to act

• When you wish your attorneys to act in regard to property and financial LPA

• That you understand when your attorneys can act in regard to your health and welfare LPA 

• Your legal rights and responsibilities 

• That you are not being pressured, tricked or placed under duress to make the LPAs

• Positives / any negatives / motivation to entering in to the proposed LPA 

• That you understand you can revoke your LPAs even when registered if you possess the mental capacity to do so at that juncture

• Whether you wish for the powers to be registered immediately or in the future

• That once signed by all parties, the LPA must be registered with The Office of the Public Guardian in order to be used. The health and welfare LPA can only be used if you have lost the mental capacity to deal with an issue yourself

We can also act as a witness and will cover the following points:

• Life sustaining treatment – health and welfare LPA

• Preferences / instructions outlined in your LPAs

• Witnessing attorney’s signatures

Will the certificate provider be completing a mental capacity assessment on me?

No, your chosen certificate provider must ensure that you understand the LPAs you are entering into, that you are free from any coercion or undue influence and that you are freely able to discuss in private your motivation for entering into the powers and that the decision as to whom your chosen attorneys are to be is yours and that you understand the powers you are bestowing upon them. The certificate provider must be certain that you, the donor, has the necessary capacity to enter into the LPAs before they can sign to certify that on the day it is their opinion that after all practical steps have been followed, they are satisfied you are able to enter into the LPAs freely and fully informed. 

Should there be any concerns in regard to your capacity and understanding or if you are seeking a ‘belt and braces’ approach to the LPAs then Thornton & Lee will discuss your needs and, if required, arrange a formal mental capacity assessment for you.

We understand that these processes can be daunting, but please be assured that at Thornton & Lee, we pride ourselves in putting you at ease and ensuring that the process is stress-free and comfortable. Our assessors are fully trained in the role of certificate provider, ensuring the process is relaxed, seamless and supportive. Should you wish to consider this service then get in touch today by completing our contact form here for your free no no-obligation quote, where our friendly team will be able to talk you through the process and answer any questions you might have. 

The post What is a Certificate Provider and why do we need one?  appeared first on Thornton & Lee.

Thornton & Lee understand the importance of advocating for an individual to remain in their own home in line with their wishes, where safe to do so. The obstacles faced by families and friends when trying to adhere to the wishes of a loved one presenting with increased needs, is an emotional and often challenging process. Concerns such as how they will be safe in between their care calls and especially at night-time, are often a cause for concern.

What types of Assistive Technology are available

As technology has advanced, Residential Care really has become an avoidable option for many individuals thanks to Assistive Technology. Assistive Technology is a range of specialist gadgets to increase independence of a disabled or older person. Including for example sensors that detect and alert if a client leaves their property overnight or does not return to bed within reasonable time during sleeping hours, or a sudden movement indicates they may have fallen.

Care Planning and Assistive Technology

Thornton & Lee’s experienced Independent Social Workers have a wealth of knowledge regarding the types of Assistive Technology available. Thornton & Lee’s Care Needs assessment, and the Care Planning process can assist individuals with information and recommendations on how Assistive Technology can be used to increase independence, and to reduce identified risk, offering peace of mind for all.

Where and how to access Assistive Technology equipment

Most Local Authorities have access to Assistive Technology equipment to loan to those with a need. But there are some excellent private providers out there too. Contact Thornton & Lee today to have an informal discussion on how Assistive Technology may support you or your loved one.

Author Natalie Corbett – Psychotherapist

The post What is Assistive Technology appeared first on Thornton & Lee.