It is important to have your health and welfare and/or property and financial affairs LPA drawn up by a Lasting Power of Attorney Solicitor. Your LPA Solicitor will take the time to listen to your current circumstances and provide you with advice on a) the implications of signing an LPA and b) explain the duties, obligations, and powers of an Attorney (a person who you appoint to make decisions on your behalf). Importantly, a Solicitor will ensure that your LPA is drafted in a manner that reflects your best interests and is legally valid.

Lack of mental capacity means that a person is unable to make decisions for themselves, possibly due to dementia or another progressive neurological condition, a severe learning disability, a brain injury, a mental health condition, a stroke, or unconsciousness resulting from an anaesthetic or a sudden accident.

According to the Mental Capacity Act 2005, it should be assumed that a person can make their own decisions unless it is proved otherwise. The Act also states where possible, individuals should be helped to make their own decisions. As such, it cannot always be automatically assumed that a person cannot make decisions for themselves.

The Mental Capacity Act 2005 sets out a two-part test to determine if a person lacks mental capacity.

The 2-part test for mental capacity set out in the MCA 2005 asks:

1. Is the person unable to make a particular decision for themselves? And
2. Is this inability due to an impairment of, or disturbance in the functioning of, a person’s mind or brain, whether because of an illness or external factors such as alcohol or drug use?

The MCA also states that a is unable to make their own decision if they are unable to:

• Understand the information given to them
• Retain that information long enough to be able to make the decision
• Weigh up the information available to make the decision, or
• Communicate their decision – this may be by speaking, using sign language, or making muscle movements, e.g. blinking, moving a finger, or squeezing a hand.

As an Attorney, you must ensure that any decision you make on behalf of a Donor must be in their best interests. This means that you should speak to the Donor when they appoint you to understand their wishes when it comes to money and healthcare matters. It is also important to bear in mind that you cannot act in the role of LPA if the LPA has not been fully registered with the Office of the Public Guardian (OPG).

As an Attorney, you must:

• Follow any instructions contained in the LPA by the Donor
• Consider the preferences of the Donor included in the LPA
• Help the Donor make their own decisions as much as they can
• Make any decisions in the Donor’s best interests, and
• Respect the Donor’s human and civil rights at all times.

Yes, a Donor can nominate more than one Attorney to make decisions on their behalf. If there is more than one Attorney in the LPA, decisions may have to be made ‘jointly’ or ‘jointly and severally.’ Deciding jointly means that all named Attorneys must agree before the decision can be finalised. On the other hand, making a decision jointly and severally means that Attorneys can make decisions together or independently of each other.

Let us advise and represent you on your Will or Lasting Power of Attorney. You can trust that we will always be on your side, protecting your best interests.

Contact us on 0333 123 1331 or fill in our contact form and we will get back to you as quickly as possible.