Ascertaining mental capacity

Ascertaining mental capacity to activate a lasting power of attorney

If you have been caring for someone who has an impairment of their mind or brain and they have trusted you to make decisions on their behalf under a lasting power of attorney, you may be wondering when you can make such decisions for them. Mental illness can progress differently for each person and some days may be better than others, so at what point do you step in? And do you need a formal medical diagnosis or assessment before you do so?

‘Understanding the concept of mental capacity and the process of its assessment is crucial for the effective activation of a lasting power of attorney,’ says Leila Murray, head of the Wills and Probate team at Kersey Solicitors.  ‘This process ensures that individuals’ wishes are respected and legally binding, protecting their autonomy while safeguarding against potential abuse.’

Leila explores the practicalities involved in assessing mental capacity, including the roles of various parties, timing, methods, settings. She also explains the requirements for the different types of lasting power of attorney.

What is ‘mental capacity’?

Your ‘mental capacity’ is your ability to make a decision for yourself.

The Mental Capacity Act 2005 provides the statutory framework for assessing mental capacity in England and Wales, and it sets out five key principles:

• Presumption of capacity: every adult is presumed to have capacity unless proven otherwise.
• Maximising capacity: all practicable steps must be taken to help an individual make their own decisions.
• Right to make unwise decisions: individuals have the right to make decisions that may seem unwise.
• Best interests: any decision made on behalf of someone who lacks capacity must be in their best interests.
• Least restrictive option: decisions should be the least restrictive of the person’s rights and freedoms.

How is mental capacity assessed for a power of attorney?

The Act sets out a two-stage test to assess mental capacity:

• Does the person have an impairment of their mind or brain, whether as a result of an illness or external factors such as alcohol or drug use?
• If so, does the impairment mean the person is unable to make a specific decision when they need to?

People can lack capacity to make some decisions (for example, to decide on complicated financial issues) but still have the capacity to make other decisions (for example, what items to buy when they go shopping or what to eat).

Mental capacity can also fluctuate with time, so that someone may lack capacity at one point in time but may be able to make the same decision later.

Where appropriate, it is important to allow the person time to make a decision themselves.

The Act says a person is unable to make a decision if they cannot do one or more of the following:

• understand the information relevant to the decision;
• retain that information for long enough to make the decision;
• use or weigh up that information for long enough to make the decision; and
• communicate their decision in any way.

When should mental capacity be assessed?

The mental capacity of your loved one will have been assessed when they made the power of attorney. Whether and when it needs to be assessed again will depend on the type of power of attorney that you are appointed under.

For a health and welfare power of attorney

You can only start to make decisions for the donor when they are unable to make decisions relating to any aspect of their health and welfare for themselves.

For a financial power of attorney

By contrast, subject to the terms of the document, you can help your loved one with financial decisions and actions from the time that the power of attorney was registered, as long as you have their consent while they have capacity. For example, they may be comfortable making certain decisions, but need help with paperwork or online accounts.

Even if you have already been using the power for financial decisions since registration, it is advisable to have the person’s mental capacity assessed where there is a concern that they may no longer have capacity to make decisions for themselves because this is relevant to the extent that you must involve your loved one in making decisions for them.

Determining when someone’s mental capacity has declined enough to activate a lasting power of attorney is not always straightforward. A formal diagnosis of dementia does not automatically mean a person lacks the capacity to make decisions.  You must assess whether evidence of deteriorating capacity may be restricted to isolated incidents or part of a broader decline that impacts the person’s ability to understand, weigh, and communicate decisions. This is a sensitive judgment call, and if there is any doubt or concern, it is crucial to consult a solicitor.

Who can assess mental capacity?

When it comes to assessing mental capacity for the purposes of activating the lasting power of attorney, your loved one’s doctor is usually the key professional involved. Typically a doctor will conduct an evaluation, considering factors such as the individual’s ability to understand, retain, and weigh information relevant to the decisions at hand. After the assessment, the doctor will generally write a report outlining their findings. This report will generally determine whether you should step in.

Where should assessments take place?

If possible, assessments should take place in an environment comfortable and familiar to the individual being assessed. This could be at their home or nursing home, the doctor’s surgery or another suitable location. The setting should ideally minimise stress and distractions to ensure the assessment is as accurate as possible.

What happens next?

What happens next depends on the outcome of the assessment, and the type of power of attorney.

If mental capacity is lacking, the lasting power of attorney may be activated, and you can make decisions on behalf of the donor. You (and any other attorney) must act in the donor’s best interests and follow any instructions or preferences.

If the person is still deemed to have mental capacity:

• the health and welfare power of attorney remains inactive;
• subject to the terms of the document, the financial power of attorney can continue to be used with the consent of the donor if it is already registered, but if not, it will remain inactive.

How we can help

Caring for someone with a mental impairment carries a lot of responsibility, and we are here to support you. We can conduct or facilitate a mental capacity assessment, ensuring compliance with all legal requirements.

For further information, please contact please contact a member of our Private Client team at Kerseys Solicitors in Ipswich on 01473 213311, Kerseys Solicitors in Colchester on 01206 584584 or Kerseys Solicitors in Felixstowe on 01394 834557 or email us at [email protected].  Alternatively visit our website and click “Call Me Back” and a member of our Private Client team will be happy to contact you at a time that is more convenient to you.