Mental capacity explained
Guidance from Estate Advisory Group
Capacity is decision-specific and time-specific. Someone can lack capacity to manage investments yet be perfectly able to decide where they want to live.
The legal test
Under the Mental Capacity Act 2005 a person lacks capacity for a decision if an impairment of the mind or brain means they cannot do one of four things:
- Understand the information relevant to the decision.
- Retain it long enough to decide.
- Weigh it up to reach a choice.
- Communicate the decision in any way.
The Act starts from a presumption of capacity, and an unwise decision is not evidence of incapacity.
Capacity to make an LPA
The donor must understand what an LPA is, that attorneys will be able to make decisions for them, and that they can restrict or cancel it while they are able. Your certificate provider signs to confirm this.
A diagnosis is not a bar
Early-stage dementia does not automatically prevent someone making an LPA, but it does make timing urgent and makes a GP or solicitor a wiser choice of certificate provider. See LPAs after a dementia diagnosis.
Fluctuating capacity
Capacity can vary through the day or with illness, medication and infection. Where it fluctuates, an LPA should be discussed and signed on a good day, ideally with a professional assessment recorded at the time in case anyone later challenges it.
Common questions
Who decides whether someone has capacity?
In practice whoever needs to rely on the decision — a certificate provider, GP, solicitor or bank. Formal assessments are usually done by a doctor or specialist capacity assessor.
What if capacity has already been lost?
An LPA is no longer possible. A family member must apply to the Court of Protection to become deputy instead.
Read next
Ready to make yours?
Answer five quick questions to see whether our service suits you. No account and no payment needed.
This is general information about how Lasting Powers of Attorney work in England and Wales. It is not legal advice about your situation. What we do and do not do.
Published by Estate Advisory Group