What is the mental capacity test for making a Lasting Power of Attorney?
The Certificate Provider confirms that you have the mental capacity to make Lasting Powers of attorney. Additional fees for that responsibility range from £0 (mine) to more than I charge for the entire process.
I make no extra charge for acting as certificate provider as part of my LPA service, provided the signing takes place at my conveniently located Polegate office. If a specialist capacity assessment is needed, I will explain this and discuss any additional cost beforehand.
Making a Lasting Power of Attorney (LPA) allows you to choose trusted people to make decisions on your behalf. Before you sign, you must have the mental capacity to understand the arrangement you are making.
People sometimes worry that this involves a difficult examination or a compulsory medical appointment. There is no standard written test that everyone must pass. What matters is your ability to make this particular decision, with appropriate explanation and support.
What do you need to understand?
The Mental Capacity Act 2005 provides the framework. You must be able to:
- Understand the relevant information about making the LPA.
- Retain that information long enough to make your decision.
- Use or weigh the information when considering your choices.
- Communicate your decision, whether through speech, writing, signs or another means.
Someone lacks capacity for a decision only where their inability to make it results from an impairment of, or disturbance in, the functioning of the mind or brain. Needing information explained simply, or remembering it only for a short time, does not necessarily prevent you from making an LPA. Mental Capacity Act 2005, sections 2 and 3
In practical terms, the discussion should explore what your LPA will do, whom you wish to appoint, the authority they will have and when they can use it. You should understand the important consequences of your choices, including any restrictions or instructions you include.
A property and financial affairs LPA can, if you choose, allow your attorneys to act with your permission while you still have capacity, once it is registered. A health and welfare LPA can only be used when you lack capacity to make the particular decision concerned. GOV.UK: Lasting Powers of Attorney
Does dementia or memory loss prevent you from making an LPA?
Not automatically. Capacity relates to the particular decision at the time it is made. A diagnosis of dementia, an advanced age or difficulties with some everyday tasks do not, by themselves, establish that you cannot make an LPA.
You must be given appropriate support to make your own decision. Nor should you be treated as lacking capacity simply because someone else considers your choice unwise. Where capacity fluctuates, the timing and circumstances of the discussion may matter. GOV.UK: Mental Capacity Act principles
What does the certificate provider do?
Every LPA needs a certificate provider. This is an impartial person who confirms that you understand the LPA and that there is no pressure, fraud or other reason preventing it from being made.
The role involves more than witnessing a signature. The certificate provider must form their own opinion after discussing the arrangement with you, preferably in private.
An eligible certificate provider can be someone who has known you well for at least two years, or a professional with relevant skills and expertise. Solicitors, healthcare professionals and registered social workers are examples. Eligibility restrictions apply: your attorney or a member of your family, for example, cannot act as your certificate provider. Office of the Public Guardian: certificate provider guidance
Will you need a specialist assessment?
A separate medical or specialist capacity assessment is not compulsory for every LPA.
Where there is significant uncertainty about your understanding, however, professional advice may be appropriate. A specialist assessment can help establish whether you have capacity to make the particular LPA and provide a record of the assessment. Routine certificate provision and a detailed expert report are different services, so their prices should be compared carefully.
What do certificate providers charge?
I have seen charges as high as £400 plus VAT and far more than that when mental capacity is too fine a decision to be made without high level mental health training. And bear in mind they may say that you don’t have capacity. There are occasions when people have left it too late for me to judge, so please don’t delay.
My approach: usually no extra certificate-provider charge
In most cases, I make no extra charge for acting as certificate provider, provided the signing takes place at my conveniently located office.
This gives us an opportunity to discuss your wishes, check your understanding and complete the signing arrangements in a comfortable setting.
If your circumstances call for a specialist assessment or additional work, I will explain what is needed and discuss any additional cost with you beforehand. Any Office of the Public Guardian registration fee is separate.
Make arrangements while you can make your own choices
An LPA must be made while you have capacity to make it. Planning ahead gives you time to consider your options, ask questions and choose the people you trust.
Please contact me to discuss your Lasting Powers of Attorney and arrange an office appointment.
Steve Pett 01323 766766