LPA Solicitors

What is mental capacity?

Mental capacity is the ability to make your own decisions. If you lack mental capacity, it means you cannot do any or all of the following:
– Understand information given to you.
– Retain information long enough to be able to make a decision.
– Weigh up the information available to make a decision.
– Communicate your 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. You can have ‘good’ days and ‘bad’ days, where on one day, the person may seem very lucid and able to make decisions, while on other days 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.

What happens if a person does not have mental capacity?

If a Lasting Power of Attorney has not been made before a person loses capacity then they cannot make a Lasting Power of Attorney. In this situation someone else will need to be appointed as a Deputy. Here’s what’s involved…