LPA & Certificate Provider Mental Capacity Assessment

In a recent Court of Protection case, Mr Justice Poole provided information concerning the assessment of mental capacity in relation to a Lasting Power of Attorney (LPA).  This will be of particular use to anyone who is asked to act as a certificate provider.  When determining whether a person has the mental capacity to grant LPA to another person, an assessor will be familiar with the principles found in Section 1 of the Mental Capacity Act (2005):

• A person must be assumed to have capacity unless it is established that they lack capacity.
• A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
• A person is not to be treated as unable to make a decision merely because they makes an unwise decision.
• An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
• Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

They will also be aware that the test for mental capacity is that the person can understand, retain, use or weigh the relevant information and communicate their decision.  Determining the relevant information is a vital aspect of a mental capacity assessment because it ensures that the person isn’t expected to know everything about the decision, only the relevant or salient points.  To ignore this would place the person at a disadvantage and increase the likelihood of them being assessed (sometimes incorrectly) as lacking capacity to execute a LPA.

This particular case involved a 60 year old gentleman and and LPA was executed in December 2009.  The donees of the LPA were his brothers and mother and there was no question about the manner in which they exercised their duty or that they would have known whether the gentleman had capacity or not when the LPA was executed.   More recently, concerns were raised about his mental capacity to execute a LPA and given that he lived with a learning disability, his mental capacity to execute a LPA in 2009.  It is not uncommon for the Court of Protection to be asked to make a determination as to a person’s mental capacity in retrospect, and this was one such case.  Mr justice Poole noted, “Although the issues are not complex, the lack of judicial authority has prompted me to publish this, suitably anonymised, judgment.”

The Office of the Public Guardian have published a booklet, “Guidance for People who want to make a Lasting Power of Attorney”.  In it, they identify the following salient points that should be considered by the assessor as a minimum for having capacity to grant a LPA.

• what an LPA is
• why they want to make it
• who they are appointing as attorney
• why they have chosen that person or those people to be appointed
• what powers are being given to the attorney

The degree of understanding required to create an enduring power of attorney was considered by Mr. Justice Hoffmann in Re K, Re F [1988] 1 All ER 358. At page 363c-f, in the penultimate paragraph of his judgment, he said:

“Finally, I should say something about what is meant by understanding the nature and effect of the power. What degree of understanding is involved? Plainly one cannot expect that the donor should have been able to pass an examination on the provisions of the 1985 Act. At the other extreme I do not think it would be sufficient if he realised only that it gave cousin William power to look after his property. Counsel as amicus curiae helpfully summarised the matters which the donor should have understood in order that he can be said to have understood the nature and effect of the power: first, if such be the terms of the power, that the attorney will be able to assume complete authority over the donor’s affairs; second, if such be the terms of the power, that the attorney will in general be able to do anything with the donor’s property which the donor could have done; third, that the authority will continue if the donor should become mentally incapable; fourth, that if he should be or become mentally incapable, the power will be irrevocable without confirmation by the court. I do not wish to prescribe another form of words in competition with the explanatory notes prescribed by the Lord Chancellor, but I accept the summary of counsel as amicus curiae as a statement of the matters which should ordinarily be explained to the donor whatever the precise language which may be used and which the evidence should show he has understood.”

Mr Justice Poole conclude that relevant information in relation to the execution of an LPA is:

• The effect of the LPA.
• Who the attorneys are.
• The scope of the attorneys’ powers and that the MCA 2005 restricts the exercise of their powers.
• When the attorneys can exercise those powers, including the need for the LPA to be executed before it is effective.
• The scope of the assets the attorneys can deal with under the LPA.
• The power of the donor to revoke the LPA when he has capacity to do so.
• The pros and cons of executing the particular LPA and of not doing so.