When Is The Right Time To Act Under A Lasting Power Of Attorney?
Understanding the process for assessing mental capacity is crucial for any attorney who wants to act under the terms of a lasting power of attorney, according to a lawyer who specialises in supporting elderly or vulnerable people.
‘Mental capacity’ refers to a person’s ability to make decisions for themselves. The Mental Capacity Act 2005 sets out a two-stage test to assess mental capacity. Firstly, does the person have an impairment of their mind or brain, and secondly, does any such impairment mean the person is unable to make a specific decision when they need to?
Lucie Glover, an Associate in Furley Page’s Elderly and Vulnerable Client Team, said: “The mental capacity assessment process is intended to ensure that individuals’ wishes are respected and legally binding, protecting their autonomy while safeguarding against potential abuse.
“The mental capacity of your loved one will have been assessed when they made the lasting power of attorney but determining whether someone has the necessary capacity to make a decision when they are deteriorating is not always straightforward.
“You must assess whether evidence of deteriorating capacity is part of a broader decline that impacts the person’s ability to retain, understand and weigh information, and communicate their decisions. This is a sensitive judgment call, and if there is any doubt or concern, it is crucial to consult a solicitor.
“In addition to this, any decision or act done by the attorney on the person’s behalf MUST always be done in that person’s best interests. What acting in someone’s best interests means is not always readily understood and can cause problems for the attorney if they act inappropriately. It is always a good idea to take professional legal advice to be safe.”
For a health and welfare power of attorney, you can only start to make decisions for the donor when they are unable to make decisions relating to any aspect of their health and welfare for themselves. By contrast, for a financial power of attorney, subject to the terms of the document, you can help your loved one with financial decisions and actions from the time that the power of attorney was registered, if you have their consent while they have capacity, and you always act in their best interests.
Lucie continued: “When it comes to assessing mental capacity for the purposes of acting under the authority of the lasting power of attorney, your loved one’s doctor is often the key professional involved. Attorneys must act in the donor’s best interests and follow any instructions or preferences.
“Caring for someone with a mental impairment carries a lot of responsibility. A qualified solicitor can advise you on how to conduct or facilitate a mental capacity assessment, ensuring compliance with all legal requirements.”
For more information about assessing mental capacity and lasting powers of attorney, please contact Lucie Glover leg@furleypage.co.uk or call 01227 274241. You can also follow the firm on X @furleypage and on LinkedIn.
