The Mental Capacity Act 2005, which introduces Lasting Powers of Attorney that start on 1st October 2007, says that a guiding principal is that a person is regarded as having capacity unless it can be proved that they lack capacity.
A person is also not to be treated as lacking capacity just because they make decisions that others would consider unsuitable. All acts done or decisions made under the act must always be completed in the best interest of the person involved.
So what is incapacity? The act defines it as ‘For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain.’
The ‘disturbance’ of the mind can be temporary which means that a person can elect to make a Lasting Power of Attorney and have it used on his/her behalf while lacking capacity and then revert back to making their own judgments when the mind is okay again. An example of this use might be someone in a coma after a car accident.
A person’s appearance or their age will not be considered as reasons in judging someone incapacitated.
For a person to be deemed to have capacity they must understand what they are doing when they make a Lasting Power of Attorney. They must be able to retain that information, use or weigh the information when making informed decisions and be able to communicate those decisions even if not by the usual verbal or written process such that sign language or other means are acceptable methods of communication.
Often LSUK are asked to complete Power of Attorney for people who are at various stages of their capacity. They are trained professionals who will aid clients to make their Lasting Power of Attorney if they have sufficient capacity to do so.
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