What is capacity when making a Lasting Power of Attorney (LPA)

Lasting Powers of Attorney are crucial to have during your lifetime regardless of your age or background. With Martin Lewis recently stating that he felt that they are more important than a Will, what do they actually do?

What are the different types of LPA?

There are two different types. The most common is the Property & Financial Affairs LPA. This is where your appointed person is permitted to make decisions about your property and finances for example managing your bank accounts, paying invoices and even as basic as speaking to the gas company.

The second type is the Health & Welfare LPA. These are designed to cover such issues as your care (say, in a nursing home) and medical treatment.

The importance of capacity when making an LPA

It’s important to make an LPA as they act like an insurance policy, you hope you never have to use them, but if you do, your loved ones are poised to seamlessly act on your behalf.

Having said that, many are still unaware that to make such documents, you need to have mental capacity. Currently, this is defined under the Mental Capacity Act 2005. Practically, this means that if someone comes to us to make an LPA, more than a simple yes is required.

What do we have to consider when taking an instruction for an LPA?

• Can they independently make the appointment to see us?
• Is it appropriate for them to be seen with others? We would usually take an instruction when they are on their own to make sure that they are not unduly influenced or coerced in any way.
• Can they retain the information pertinent to deciding who to appoint as their attorneys?
• Who are they choosing to appoint as their attorneys? Are they appointing a colleague or friend when they have children? Are they appointing one child only when they have four?

There are multiple questions that we ask when speaking to someone about making such an important document and due to its nature, it is more nuanced than someone simply saying “yes” to “Do you want X to look after your money?”.

The bottom line

The question of capacity is important in taking an instruction for LPA. We’re duty-bound to ensure that anyone who wishes to set up an LPA has capacity to do so and is doing so of their own free will. This is for the individual’s protection and to ensure that whatever provisions are put in place for them are in their best interest.

Need to set up a lasting power of attorney? Our expert legal team will provide the support, advice and understanding needed to help you protect your future. Call us today on 0161 930 5151 , email us at enquiries@gorvins.com or fill in the online form.