Back to Basics – How should a Certificate Provider Assess Capacity?

Our last article examined the role of a certificate provider and the restrictions on who can/cannot act as one. In this article, we’ll take a more in-depth look into one of the certificate provider’s roles, assessing the donor’s mental capacity.

Under Schedule 1, paragraph 2(1)(e) Mental Capacity Act 2005, an LPA is only valid if it includes a certificate signed by a person (the certificate provider) confirming that in their opinion, at the time of executing the LPA:

• the donor understands what an LPA is and understands its content
• the donor understands what powers they will be giving to their attorneys in their LPA
• the donor is not being pressured in any way or under duress by someone else to make the LPA and they are doing this of their own free Will; and
• there is nothing else that would prevent the LPA from being created.

In order to assess the capacity of a Donor making an LPA, a Certificate Provider must be aware of the relevant 2-stage test for mental capacity under Sections 2(1) and 3(1)(a)-(d) of the Mental Capacity Act 2005 (the Act).

The first ‘Diagnostic’ test is concerned with whether there is an impairment or disturbance in the functioning of the Donor’s mind or brain.

The second ‘Functional’ test is concerned with whether the impairment or disturbance is sufficient that the Donor lacks the capacity to make a particular decision.  By way of guidance with the ‘Functional’ test, a Certificate Provider can assume that a Donor does not have capacity if they cannot understand the information relevant to a decision, retain that information, weigh the information as part of a decision-making process, or communicate that decision using any means.

The Certificate Provider must also be aware of the Five Principles of capacity under Section 1(2)-(6) of that Act, which are as follows:

1. A Donor must be assumed to have capacity unless it is established that they lack capacity.
2. A Donor is not to be treated as unable to make a decision unless all practicable steps to help them do so have been taken without success.
3. A Donor is not to be treated as unable to make a decision merely because they make an unwise decision.
4. Any act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in the Donor’s best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the Donor’s rights and freedom of action.

What kind of questions can be asked to assess capacity?

Understanding what an LPA is and the purpose of an LPA

• Can you explain what a Lasting Power of Attorney (LPA) is and why you want to create one?
• Do you understand that you are appointing someone to make decisions on your behalf if you are unable to do so yourself?
• Why would you want to appoint someone to make decisions for you in the future?

Understanding the Powers that are being Granted to the Attorneys

• Can you describe what powers and responsibilities you are giving to your attorneys to make on your behalf?
• Do you understand your chosen attorneys will be able to make decisions on your finances or health?
• How would you feel if you no longer trusted the person you appointed?

Understanding the Consequences

• What could happen if you choose someone you don’t trust to act as your attorney?
• What would happen if you decide to revoke the LPA in the future?
• Do you understand that once this LPA is registered, it can be used even if you are not able to make decisions yourself?

Choosing an Attorney

• Can you explain why you are choosing [NAME] to make decisions for you?
• Why do you think [NAME] would be a good person to act on your behalf?

Understanding the Capacity to Make Decisions

• Can you give me some examples of what kinds of decisions the attorneys will be able to make on your behalf?

Understanding the Process

• Can you explain what will happen after you sign the LPA document?
• Are you aware that the LPA has to be registered with the Office of the Public Guardian before it can be used?

Checking the decisions the client has made

• Can you recall who you want to appoint as your attorney for your affairs?
• Can you remember the reasons why you are choosing to create an LPA today?

For further advice on making an LPA, speak to one of our members today. You can find a member in your area by searching our Find a Member page or calling our offices on 01522 687 888.