Mental Capacity and LPAs Explained

What is Mental Capacity?

Mental capacity is your ability to make decisions for yourself. In legal terms, it's defined by the Mental Capacity Act 2005—the same law that governs Lasting Powers of Attorney in England and Wales.

Understanding mental capacity is crucial because:

You must have capacity to create an LPA
Your LPA can only be used when you lack capacity (for Health & Welfare)
Capacity determines when your attorneys can step in

The Legal Definition

Under the Mental Capacity Act, you have mental capacity if you can:

Understand information relevant to the decision

Retain that information long enough to make a decision

Weigh up the information to reach a decision

Communicate your decision (by any means)

If you cannot do one or more of these things for a specific decision, you may lack capacity for that decision.

Key Principles of the Mental Capacity Act

1. Assume Capacity

Everyone is assumed to have capacity unless proven otherwise. Age, appearance, or condition alone don't indicate lack of capacity.

2. Support Decision-Making

Before deciding someone lacks capacity, all practical steps must be taken to help them make the decision themselves.

3. Unwise Decisions Are Allowed

Making a decision others consider unwise doesn't mean you lack capacity. You have the right to make your own choices.

4. Best Interests

Any decision made on behalf of someone who lacks capacity must be in their best interests.

5. Least Restrictive Option

Actions taken should restrict the person's rights and freedom as little as possible.

Capacity is Decision-Specific

This is crucial to understand: capacity is assessed for each specific decision.

Someone might:

Have capacity to decide what to eat for lunch
Lack capacity to manage complex investments
Have capacity to choose what to wear
Lack capacity to decide on major surgery

It's not all-or-nothing. A person might need support for some decisions while being perfectly capable of making others.

Capacity Can Fluctuate

Mental capacity isn't necessarily permanent. It can:

Vary throughout the day
Be affected by medication
Improve with treatment
Decline gradually or suddenly

This is why LPAs are so important—they provide flexibility for times when capacity is reduced, while respecting your autonomy when you can decide for yourself.

Creating an LPA: Capacity Requirements

To create a valid LPA, you must understand:

What an LPA is and what it does
The powers you're giving to your attorneys
That attorneys must act in your best interests
That you can cancel the LPA while you have capacity

The certificate provider on your LPA confirms that you have this capacity when signing.

What If Someone's Capacity is Borderline?

If there's any doubt about someone's capacity to create an LPA:

A medical assessment may be helpful
A doctor or psychiatrist can provide an opinion
This provides evidence that the LPA was validly made
It can protect against future challenges

When is Capacity Assessed?

For Property and Financial Affairs LPA

This LPA can be used as soon as registered
If you have capacity, attorneys need your permission
When you lose capacity, they can act without asking

For Health and Welfare LPA

This LPA can only be used when you lack capacity
Capacity is assessed for each health decision
Healthcare professionals typically make this assessment
Your attorney can then step in for that specific decision

Who Assesses Capacity?

Different people assess capacity in different situations:

Day-to-day decisions: Care staff, family members
Medical decisions: Doctors, nurses
Financial decisions: Bank staff, solicitors
Legal proceedings: Court-appointed assessors

The assessment should be proportionate to the decision. Buying a coffee requires less rigorous assessment than selling a house.

Capacity and Your LPA

Your LPA can include preferences about how capacity should be assessed. You might specify:

Your GP should be consulted
A specialist should be involved
Certain conditions should be considered

These aren't legally binding but guide your attorneys and healthcare professionals.

Planning While You Have Capacity

The crucial message is this: you can only create an LPA while you have capacity. Once capacity is lost, it's too late.

This is why we encourage people to:

Create LPAs while healthy and able
Not wait for signs of decline
Review LPAs periodically
Update if circumstances change (while you still can)

Protecting Your Future

Creating an LPA now, while you have full capacity, is the best way to ensure:

Your wishes are known and documented
Your chosen people can act for you
You've had time to think carefully about your choices
The document is clearly valid

Don't wait until capacity is in question. Act today.

Create Your LPA Now →