The Willwriting Partnership

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All about Lasting Power of Attorney, or LPA

What is a Lasting power of Attorney (LPA)?

It is a document made and signed by the Donor (the person making the LPA) empowering his/her attorneys (generally the Donor’s spouse/civil partner or informal partner, together with trusted family members and friends) to take charge of the Donor’s welfare and/or property and affairs, in the event of the Donor becoming incapacitated.

Incapacity is very closely defined by The Mental Capacity Act 2005 and is governed by...

The five key principles

  1. There is a presumption of capacity and every person has the right to make their own decisions and must be assumed to have capacity to do so, unless proved otherwise.
  2. Individuals have a right to support to make their own decisions. Individuals should be given appropriate help before deciding they do not have capacity
  3. An individual can make an unwise or eccentric decision without being considered mentally incapacitated.
  4. All decisions must be made in the best interests of a person without capacity. Amongst other things, this includes taking account of the wishes and feelings of the incapacitated person whilst also, wherever possible, involving them in the decision-making.
  5. Any decision made must be the least restrictive means of intervention in the affairs of the incapacitated person

The statutory definition of a person who lacks mental capacity

  • 1. For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he/she is unable to make a decision for himself/herself in relation to the matter because of an impairment of or a disturbance in the functioning of the mind or brain.
  • 2. It does not matter whether the impairment or disturbance is permanent or temporary.
  • 3. A lack of capacity cannot be established merely by reference to a person’s age, appearance or condition, or an aspect of his/her behaviour which might lead others to make unjustified assumptions about his/her capacity.
  • 4. In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
  • 5. No power which a person may exercise under this Act in relation to a person who lacks capacity or where it is reasonably thought that a person lacks capacity, is exercisable in relation to a person under 16.

Functional test of incapacity

A person will be deemed to be unable to make a decision for himself/herself if he/she is unable to: -

  • Understand the information relevant to the decision.
  • Retain the information
  • Use or weigh that information as part of the process of making a decision
  • Communicate the decision by speech, sign language or any other means

A person making decisions of behalf of the incapacitated person (the attorney)

  • Must consider the person’s past and present wishes and feelings (in particular, any written statements made when there was capacity),
  • Must consider the beliefs and values that would have influenced decisions.
  • The factors that would have likely been considered if there had been capacity

The views of others should be considered and consulted namely:

  • Anyone named by the person as someone to be consulted on the matters in hand
  • Anyone engaged in caring for the person (or who is interested in their welfare)
  • Any Donee of a Lasting power of Attorney
  • Any deputy appointed by the Court of Protection

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