An individual can lack metal capacity if they have an injury, disorder or condition that affects the way their mind works. People are considered to lack mental capacity if they have impairments that mean they are unable to make an explicit decision.
When does someone lack mental capacity?
It is important to understand whether a person has the mental capacity to make decisions for themselves when it comes to Power of Attorney. 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
How can you work out if a person has mental capacity?
Some general guidelines exist to help work know whether a person has mental capacity.
A person is unable to decide 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
- Trouble remember that information
- Use the information to help them to make a decision
- 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.
Capacity assessments should be conducted if the individual in question is having difficulty understanding or making decisions themselves.
An individual may have capacity to make some or part decisions, but not others. Many professionals could be involved in assessing capacity such as doctors, solicitors and social workers.
What are the different types of Power of Attorney?
There are three different types of Power of Attorney, which are Ordinary Power of Attorney, Lasting Power of Attorney and Enduring Power of Attorney. Below we look at what each mean.
Ordinary Power of Attorney (OPA) – This is used by someone who has sound mental capacity but needs temporary cover.
Lasting Power of Attorney (LPA) – This is done to give someone you trust the power to make decisions about your financial affairs, health and care, should you lack the mental capacity to make your own decisions, in the future.
Enduring Power of Attorney (EPA) – EPAs were substituted by LPAs in October 2007. If you arranged an EPA before this time, it should still be valid. If in doubt, contact us and we can talk you through it.
What are my legal responsibilities under Lasting Power of Attorney?
If you are the LPA for someone else, you have a legal duty to do the following:
- Always act in the person’s best interests
- Make decisions that are in accordance with the terms of being an LPA
- Encourage and help the person make their own decisions if possible
- Keep track of all financial records and present them to the Office of the Public Guardian
- For more information, you may call us for advice.
What can I do if I want to set up the Power of Attorney to manage only my finances?
A Lasting Power of Attorney for Property and Financial Affairs will be the right one for you. In this way, you can assign various people who you trust to help with your finances. You can book a free initial consultation with JMR Solicitors to discuss your options.
How do I apply for a remission or exemption?
A remission or exemption is when you can make an LPA for half the price or for free. If you
earn less than £12,000 per year or receive means-tested benefits, you can apply for a
remission or exemption.
Who can witness an LPA?
If you are a donor, the person for whom the LPA is intended, your witness must be anyone
over the age of 18, and not a named attorney or replacement attorney.
An attorney’s signature must also be witnessed by someone over the age of 18 who is not
the donor. Attorneys can witness each other’s signatures, and your certificate provider can
act as a witness on behalf of the donor and attorneys.
Can I limit the powers of my Attorneys?
It is possible to restrict how your Attorneys act for you in the Lasting Power of Attorney
document. For example, you may not want to give your Attorney authority over certain
assets. However, because your Attorney should be someone you completely trust, imposing
restrictions in the majority of cases would seem unnecessary.
How can JMR Solicitors help with Power of Attorney?
At JMR Solicitors, we are a trusted law firm in Manchester, and we have helped hundreds of
clients with Lasting Power of Attorneys related matters.
For a no-obligation and confidential chat with one of our solicitors, contact us on 0161 491
3933 or email email@example.com to discuss your lasting power of attorney queries.
How can JMR Solicitors help with Power of Attorney?
At JMR Solicitors, we are a trusted law firm in Manchester, and we help numerous clients for all types of Lasting Power of Attorneys.
For a no-obligation and confidential chat with one of our solicitors, contact us on 0161 491 3933 or email firstname.lastname@example.org