Does my mum/ dad have the mental capacity to make a Lasting Power of Attorney?
The definition of mental capacity is in the Mental Capacity Act 2005.
The first part is: ” The inability to make a decision must be caused by an impairment of or disturbance in the functioning of the mind or brain. This is the so-called “diagnostic test” of mental capacity. This could cover a range of problems, such as psychiatric illness, learning disability, dementia, brain damage or even a toxic confusional state, as long as it has the necessary effect on the functioning of the mind or brain, causing the person to be unable to make the decision.”
But it goes on from there and sets out the test for assessing whether a person is unable to make a decision (does not have mental capacity) about a matter and therefore lacks mental capacity in relation to that matter. It is a “functional” test, looking at the decision-making process itself.
Four reasons are given why a person may not have mental capacity and therefore be unable to make a particular decision.
- To make a decision, a person must first be able to comprehend the information relevant to the decision. A determination of mental incapacity may not be reached without the relevant information having been presented to the person in a way that is appropriate to his circumstances.
- The person must have the mental capacity be able to retain this information (for long enough to make the decision.
- The person must have the mental capacity to be able to use and weigh the information to arrive at a choice. If the person cannot undertake one of these three aspects of the decision-making process then he is unable to make the decision and does not have mental capacity to make this particular decision.
- A person is unable to make a decision namely where he cannot communicate it in any way. This is intended to be a residual category of mental incapacity and will only affect a small number of persons, in particular some of those with the very rare condition of “locked-in syndrome”. It seems likely that people suffering from this condition can in fact still understand, retain and use information and so would not be regarded as lacking capacity under subsection (1)(a) to (c). Some people who suffer from this condition can communicate by blinking an eye, but it seems that others cannot communicate at all. Any residual ability to communicate (such as blinking an eye to indicate “yes” or “no” in answer to a question) would exclude a person from this category.
Mental Capacity Lasting Power of Attorney
What is interesting is that a large proportion of people who might be considered by some as being unable to make Lasting Powers of Attorney through lack of mental capacity actually could – at least in the early stages of diseases such as Alzheimers. We will be happy to advise clients on the generalities, though their will be marginal cases where medical advice must be sought. All we can really suggest is that the creation of Lasting Powers of Attorney for those with declining mental capacity should be treated as a matter of the utmost urgency, as it is a far better alternative than going through the Court of Protection to be appointed as a deputy once mental capacity has been lost.