Mental Capacity to Make a Lasting Power of Attorney (LPA): Frequently Asked Questions

At Thornton & Lee, mental capacity to enter into Lasting Power of Attorney (LPA) is one of our most popular mental capacity assessment services, with our assessors completing many of these types of assessments each week.

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.