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When a person makes a power of attorney, they are appointing someone else to act for them with regards to certain matters. The person making the power of attorney is called the donor, and the person they appoint is called the attorney. A power of attorney gives the attorney the legal authority to act on the donor’s behalf with third parties such as the local council or banks. Certain types of power of attorney also authorise the attorney to act on decisions such as where the donor should live and whether they should see a doctor. In order to make any type of power of attorney, the donor must be able to make decisions for themselves. This is called having mental capacity.
It is important to understand whether a person has the mental capacity to make decisions for themselves. This could impact how you can deal with that person’s affairs, such as whether it is still possible to create a lasting power of attorney or not.
It is also important to know at what point a person has lost their mental capacity so that a personal welfare lasting power of attorney or enduring power of attorney can be registered.
If a person can make a decision for themselves, they are said to have the mental capacity to make that decision. If that person is unable to make that decision due to some kind of mental disability, they can be said to lack mental capacity. The disability causing this may be permanent or temporary and could be caused by:
- Mental health problems
- Brain injury
- Alcohol or drug dependency
- Side effects of certain medical treatments
- Other illnesses or disabilities
Some general guidelines exist to help work know whether a person has mental capacity.
A person is unable to make a decision if they cannot:
- Understand the information necessary to help make an informed decision, even when information is given in a way that meets their needs for example, in sign language or simple terms, or
- Remember that information, or
- Use the information to help then to make a decision, or
- Communicate their decision in any way
A person may lack the capacity to make all decisions, or they may only have the capacity to make certain decisions but not others.