LPA Solicitors

What happens if you do not have mental capacity?

If you have not made a Lasting Power of Attorney before you lose mental capacity then you cannot make a Lasting Power of Attorney. In this situation someone else will need to be appointed as a Deputy. Click here to see what is involved in appointing a Deputy.

What is mental capacity?

Mental capacity is the ability to make your own decisions. If they lack mental capacity, it means they cannot do any or all of the following:
– Understand information given to them.
– Retain information long enough to be able to make a decision.
– Weigh up the information available to make a decision.
– Communicate their decision.

A lack of mental capacity can be caused by dementia, a stroke or brain injury, mental health problem, a learning disability, confusion, drowsiness or unconsciousness because of an illness or the treatment for it or substance or alcohol misuse.

Making decisions for someone who lacks capacity

When it comes making a decision for someone who lacks capacity, this can vary from day to day, and from person to person, and even after an LPA has been registered you must assume that the donor has the capacity to make decisions themselves unless you establish that they can’t.

In the case of dementia, mental capacity can fluctuate. There can be ‘good’ days and ‘bad’ days. One day, the person may seem very lucid and able to make decisions, while on another day they can’t.

It’s important that you look at each decision and assess the person you’re making for on a “case-by-case” basis. And don’t assume that because they are unable to make a decision about whether they should be selling their house, that they cannot make a decision on what they want to eat or wear that day.