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Capacity to Make Lasting Power of Attorney

Lasting Powers of Attorney (LPA) can be made to appoint an individual or individuals to act on behalf of a person to help make decisions either for Property and Financial Affairs or for Health and Welfare. Part of this process requires a declaration to confirm that the person making the LPA has the mental capacity to do so.

At TSF we can assess a person’s mental capacity to make an LPA and if capacity is confirmed, act as certificate provider on the LPA documentation.

We will assess a person’s understanding of the LPA forms including whether a person is able to understand the process of appointing attorneys, the decisions that their attorneys will be able to make and how and when they want their attorneys to act.

What is the legal test used for a Lasting Power of Attorney Mental Capacity Assessment?

A Lasting Power of Attorney Mental Capacity Assessment uses the Mental Capacity Act (2005) two stage test of capacity to determine whether a person lacks capacity to make the decision in question.

In order to satisfy this test, a cognitive impairment must be present (this is the diagnostic test) and the person will be assessed as to whether they are able to understand, retain, and use and weigh information specific to the decision being made (this is known as the functional test).

A Causative Nexus must be established, that is to say, there must be a link between the functional test and the diagnostic test in order for a person to be assessed as lacking capacity for a specific decision.

Assessment process

In order to complete a thorough assessment, we ask for draft copies of the intended LPA documents. If these have not yet been completed, we will ask for the information required on the LPA form, such as who the proposed attorneys are and how they will act, whether there is an intention to appoint replacement attorneys and details of the person’s property and financial affairs or relevant health and welfare information.

Where a person has capacity to make LPAs, we would provide a written report to confirm this and act as Certificate Provider.

If a person lacks capacity to make an LPA for Property and Financial decisions, many of our clients would then choose to make a Deputyship application with the Court of Protection. We can adapt our assessment to assess a person’s capacity to manage their property and financial affairs and complete a COP3 form to facilitate the application. Circumstances in which a Deputyship application for health and welfare decisions would be made are less common, but we can also complete this type of assessment.

The assessment can take place either by video link or face to face depending on your location. We will be guided by you as to the best time to assess and whether you need a supporting person in the assessment. We will also take into consideration any communication needs and adapt the assessment accordingly. The assessment will take the format of a conversation rather than it being a formal test.


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