What is mental capacity?
Mental capacity is the ability to understand, make, evaluate, and communicate particular decisions. You must understand the decision, retain the information that helped you form the decision, and appreciate the potential consequences that may come from the decision.
Lasting Powers of Attorney (LPAs) and mental capacity
An LPA is a legal document that allows you (the donor) to appoint trusted people to look after your affairs and make decisions on your behalf during your lifetime (your Attorneys). To read more about Lasting Powers of Attorney, please see here. Solicitors have a duty to ensure that the donor has mental capacity at the time they wish to prepare the document.
So, what can you do if your loved did not prepare LPAs and they have now lost the mental capacity to do so?
The first step is to establish that your loved one has lost mental capacity. This can be confirmed by a professional assessment report, carried out by a Doctor specialising in the area.
If your loved one has lost capacity, you will need to then make an application to the Court of Protection for a Deputyship Order.
What is a Deputyship Order?
A Deputyship Order is a Court Order that provides named individuals (the Deputies) with the authority to make decisions on behalf of the person who has lost capacity. There are two types:-
- Property & Financial Affairs – the Deputies can pay bills, manage bank accounts, buy or sell property on behalf of the person lacking capacity. This is the most common type of Order made by the Court.
- Personal Welfare – includes decisions relating to the person’s medical treatment and care or living arrangements. This is less commonly granted as the court is generally reluctant to appoint a Deputy to make ongoing health decisions. These types of Orders are not often made.
Deputies have a duty to always make decisions in the best interests of the person who has lost capacity, and they are governed by the principles and guidelines contained in the Mental Capacity Act 2005.
Unfortunately, the application process is complex, costly, and can seem intimidating. We therefore recommend seeking guidance from a Solicitor to help guide you through the process, and our experts at Johnson Astills would be pleased to assist you in this respect.
This is why planning ahead is so important. Preparing an LPA whilst you have capacity allows you to choose people that you trust to make decisions on your behalf, and can prevent the need for a future application to the Court of Protection.
If you wish to prepare LPAs, or would like assistance with obtaining a Deputyship Order, please feel free to contact our expert solicitors who would be pleased to assist you with this. You can call us at our office in Leicester or our office in Loughborough. Alternatively, you may prefer to email us at legal@johnsonastills.com or fill in our enquiry form.
