A Lasting Power of Attorney (LPA), which replaced Enduring Powers of Attorney in October 2007, allows an individual, known as the ‘donor’, to appoint one or more people to make decisions on their behalf for property and finance and health and welfare decisions.
These documents are generally made by a donor at a time when they have capacity. This is to protect their affairs for the future, in case they lose capacity, for example as a result of an accident, stroke or a dementia diagnosis.
It is important to note that an LPA could be made by a person who has a diagnosed learning disability or cognitive impairment if they have sufficient capacity to understand the actions that they are taking.
A formal assessment of mental capacity to apply tends not to be common practice unless there is reasonable belief the donor lacks the capacity to appoint an attorney. However, the process always requires a certificate provider to confirm that the donor has understood the document and that they are not under any fraud or undue influence to make the LPA.
A certificate provider can be someone who has known the donor well for at least two years, or a person with relevant expertise such as a social worker, GP or solicitor. An independent and professional certificate provider can provide protection to the donor and attorneys if the validity of the LPA is ever called into question.
The recent ruling in the case of Public Guardian v RI & Ors (2022) [EWCOP 22] clarifies the information a donor must understand to demonstrate mental capacity. The donor in this case was a man (‘P’) who had a diagnosed learning disability and chronic schizophrenia who was thought to have capacity by a certificate provider in 2009 when the LPA was signed and executed.
When the validity of the document was called into question, the certificate provider could not be found. A Court of Protection Special Visitor was called to assess the retrospective capacity of P. It was found that his capacity was unlikely to have changed since 2009, even if it was reported that he had obviously deteriorated since then. The LPA was held invalid and was revoked.
The judge in this case listed the evidence that would be useful to the court to demonstrate the capacity of the donor and their ability to understand the document that they were signing.
What would the donor need to understand to prove capacity?
- The effect of the LPA
- Who their attorneys are
- The scope of their attorney’s power and the restrictions of the Mental Capacity Act 2005
- When the attorneys can exercise those powers, including the need for the LPA to be executed before it is effective
- The scope of the assets the attorneys can deal with
- The power that the donor can revoke the LPA whilst they have capacity
- The pros and cons of executing the LPA and of not doing so
If the certificate provider is happy that the donor understands the above criteria, then the donor will be able to sign the LPA. If the donor is shown not to be able to understand any of the above criteria, then any signed LPA would be invalid and they would not be able to sign another.
The court said that evidence from the time the LPA was created would greatly help in determining whether or not a donor had sufficient capacity to make the LPA at the time. The expertise of the certificate provider, any independent formal assessments, medical evidence and evidence from carers and family members, were all considered to be relevant.
There are always options available for those who are concerned for someone with a learning disability or other cognitive impairments but understanding their ability to comprehend, and not just hear, information is key to being successful with application such as these.
For an individual who lacks capacity, a deputyship order might be a better approach to assist with the individual’s property and finance and/or health and welfare decisions.