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.

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. 

The post Communication and Mental Capacity: Why the Right Approach Matters 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.

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.

The post What is a Deed of Transfer and Deed of Gift and why might a capacity assessment be required when transferring property ownership. 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.

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. 

The post The importance of mental capacity assessments in financial decision-making appeared first on Thornton & Lee.

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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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.

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. 

The post Gifting capacity  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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