I only have 300 words so I’ll be quick-
There are two types of LPA. Property & Finance LPAs enable attorneys to operate bank accounts, claim and receive benefits or pensions, pay bills and buy or sell property. They can be used before and after capacity is lost. Someone may choose to set up this LPA if they are going abroad and want their finances to be looked after. They may have capacity to make decisions, but find it physically difficult to get to meetings.
The Health & Welfare LPA allows decisions such as what hospital treatment is provided or what nursing home is appropriate. This type of LPA can consent to or refuse life-sustaining treatment if specified in the LPA. This LPA is only effective once capacity to make those decisions is lost.
Both types of LPA must be registered before they can be used.
Capacity is time and decision specific. The donor cannot be deemed generally mentally incapable. They must be assessed at a certain time, about a certain decision.
Capacity fluctuates and it is important that a person is helped to make their own decisions whenever they can. Some simple decisions may be fine but complex decisions may require a doctor or other specialist to help.
The two-tier test to assessing capacity is:
1. Is there an impairment of or disturbance in the functioning of a person’s mind or brain? If so,
2. Is the impairment or disturbance sufficient that the person lacks the capacity to make a
particular decision? Are they unable to:
- Understand the information (nature, purpose and likely effects of decision).
- Retain the information.
- Use the information to inform their decision-making.
- Communicate their decision.
For more specific advice, make an appointment to see us at Poole Townsend.