A Lasting Power of Attorney is a legal document, which allows a person to appoint someone they trust as an 'attorney' to make decisions on their behalf. These decisions can be about their welfare, their money or their property. Attorneys can make decisions for people when they no longer wish to do so, or when they lack the mental capacity to do so. A Lasting Power of Attorney cannot be used until it is registered with the Office of the Public Guardian.
Who decides what 'lacking mental capacity' means?
Someone can lack mental capacity if they have an injury, disorder or condition that affects the way their mind works. This could mean they have difficulty making decisions all of the time or that it might take them a long time to make a decision. The assessment of someone's mental capacity should only be made at the time a particular decision needs to be made.
Any assessment should start with the assumption that the person has the capacity to make the decision in question. It should never be based simply on their age or appearance, nor on an assumption about their condition or any aspect of their behaviour. A solicitor can decide if someone is capable of making decisions or understanding things such as a will or a Lasting Power of Attorney. If in doubt, they can get an opinion from a doctor or another appropriate professional. The Court of Protection has power to decide whether someone has mental capacity or not if there is a disagreement.
Determining who is capable of making a decision
The Mental Capacity Act Code of Practice, 2005, gives detailed guidance on how to assess someone's ability to make decisions, but generally the sort of things that should be taken into consideration when assessing the ability to make decisions are:
- if the person understands what decision they need to make and why they need to make it
- if the person understands what might happen if they do or do not make this decision
- if the person can understand and weigh up the information relevant to this decision
- if the person can communicate their decision (by talking, using sign language or any other means)
- if the person can communicate with help from a professional (such as a speech and language therapist)
- if there is a need for a more thorough assessment (perhaps by involving a doctor or other professional expert)
It's vitally important to make the distinction that just because a person makes a decision you don't agree with, doesn't mean they are therefore incapable of making a decision. If in any doubt about this matter, it is always best to consult a qualified solicitor for an informed opinion.