The Mental Capacity Act 2005 provides that a person is presumed to have mental capacity until it’s proved to the contrary. In other words, you don’t have to prove you have it others have to prove you don’t.
Mental capacity means you have the ability to make your own decisions. This means you can –
- Understand the information needed to make a decision
- Retain the information for as long as you need to make a decision
- Weigh the information up to reach a decision
- Communicate this decision to others, be it verbally or non-verbally
- Understand the consequences of making or not making any given decision
Mental capacity is time and matter specific. Can you make a particular decision at a particular time.
The notion of having/not having mental capacity is a complicated one. People living with dementia can make some decisions but not others. You may not be able to find your way home but may know exactly what you have in the bank. It is important not to confuse dementia with confusion bought on by illness or accident which can temporarily impair a person’s ability to make decisions.
You must have sufficient mental capacity when making a Lasting Power of Attorney (LPA). If you don’t then the only alternative, if your loved ones want to make decisions on your behalf, is to apply to the Court of Protection for a Deputyship Order instead. The court is however reluctant to make decisions about your health and welfare as these are very subjective matters. A Health and Welfare LPA allows your attorneys to ensure your health decisions are carried out when you can no longer express them yourself.
What does it mean to have mental capacity?
Testing mental capacity when making an LPA
When you make an LPA, you must get a Certificate Provider to sign the document. This Certificate Provider will test your mental capacity using the framework outlined above.
Certificate Providers cannot be a member of your family or anyone you have nominated as an Attorney/replacement Attorney. Its important to pick someone independent and who has a grasp of the legal principles. Often, they will be your solicitor. This is because their opinion holds more weight. This will be a huge help if anyone tries to challenge your LPA on the grounds of lack of mental capacity. The fact that a solicitor confirmed your mental capacity will be hard to dispute.
Can I make an LPA if I have dementia?
Often, a degenerative illness such as dementia prompts someone into making an LPA. Yet you might be concerned that you will be denied this opportunity, as you have a medical condition that affects your mental capacity.
However, mental capacity is fluid. Just because you have been diagnosed with dementia now, does not mean that you are unable to make your own decisions. You might lose this ability in the future, but so long as you still have mental capacity, you can make a Lasting Power of Attorney.
Nevertheless, a Certificate Provider must test your mental capacity first.
What if I lose mental capacity?
So long as you are conscious and able to communicate you will have some mental capacity. However, you may not have sufficient to make an LPA. If the Certificate Provider does not agree that you have sufficient mental capacity, you are not allowed to make an LPA. If your loved ones want the authority to make decisions on your behalf, they must apply to the Court of Protection for a Deputyship Order instead. This is a more expensive and time consuming process.
To ensure you are able to make a Lasting Power of Attorney, it is better to act sooner, rather than later. If you leave it too long, you may be told that you have l insufficient mental capacity – in which case, your chance to make a Lasting Power of Attorney will be lost.