In order to register a lasting power of attorney (LPA) that you have made, you must have mental capacity to understand what you are doing.
How do I know if I have mental capacity
Put simply, mental capacity is your ability to make decisions for yourself.
But it is not necessarily something that you have or you don’t have. You may be able to reason and to make decisions perfectly well about some matters, such as how your financial affairs should be managed, but not about other things, such as where you would like to live.
You can also be mentally capable at certain times of the day, but not at others.
So having capacity is not a black or white issue. Loss of mental capacity with respect to certain matters might be a reason that you seek a diagnosis for dementia, but having dementia might not prevent you from making an LPA.
Of course, it is best if you plan as early as possible for your elderly care.
When determining whether you have capacity, the law in The Mental Capacity Act outlines five key principles and provides an assessment framework referred to as The Two Stage Test.
The first stage of The Two Stage Test is a check to see if you have any general impairment that affects your ability to make a decision, such as dementia.
If you have an impairment, then the second stage is to check the following for a particular type of decision:
comprehension: you understand relevant information relating to the decision
memory: you can remember the information for the duration of the decision making process
judgment: you can weigh up and use relevant information to make a decision
communication: you can communicate your decision, either verbally or non-verbally
If you have these four attributes for a particular decision, then you have mental capacity to make that decision.
Role of certificate providers in making LPAs
When you make either type of lasting power of attorney, the role of the certificate provider is threefold.
Firstly, he or she confirms your identity. This is to prevent someone else who could benefit from being personally given powers from making an LPA on behalf of someone else who might not make the same decisions regarding attorneys, preferences and instructions.
Secondly, he or she confirms that you understand the consequences of your decisions, preferences and instructions in making an LPA and that those decisions have not been forced on you by another person or in a situation where you do not have free will to make them.
Thirdly, he or she confirms that you have mental capacity to make the decisions that you record in the document.
The last function is important. Decisions made in LPAs are most often contested on the basis of a lack of mental capacity (even if the real reason is that the person contesting your decisions simply doesn’t like them).
So if there is a chance that someone might not like your decisions, and might be able to argue that you didn’t have mental capacity when you made them, you should be careful who you chose as your certificate provider, and perhaps also have independent mental capacity certification performed by a specialist nurse or psychiatrist.
Who can be a certificate provider?
The certificate provider must be someone who has known you well for at least two years, or be a professional, and must not be anyone you have nominated in any other role in your LPA.
The certificate provider should be either:
someone who has known the donor personally for at least 2 years, such as a friend, neighbour, colleague or former colleague
someone with relevant professional skills, such as the donor’s GP, a healthcare professional or a solicitor
You should expect that your solicitor will not want be your certificate provider unless you have paid him or her to prepare your LPA. He or she takes a risk of being sued by you if his or her opinion turns out to be incorrect. More likely, the fee you pay for certification is unlikely to be large enough to justify spending time on your case.
Similarly, your GP is unlikely to want to be your certificate provider. Although he or she should be better able to determine your capacity in his or her role as a medical professional, acting as a certificate provider is a distraction from medical work that busy GPs prefer to avoid.
That leaves an expert nurse as the best certificate provider if you think that the opinion of anyone else you might choose would be contested.
As a side note, nothing can stop someone else from contesting your decisions. There may be people who don’t like what you wish to happen. However, you can make sure that their contest is likely to be overturned by the Office of the Public Guardian (who deals with these issues).
Who cannot be a certificate provider?
The certificate provider must not be:
a helper (attorney) or replacement helper (replacement attorney) named in any lasting or enduring power of attorney the donor has made
a member of the donor’s family or of one of the helper’s families, including husbands, wives, civil partners, in-laws and step-relatives
an unmarried partner, boyfriend or girlfriend of either the donor or one of the helpers (whether or not they live at the same address)
the donor’s or a helper’s business partner
the donor’s or a helper’s employee
an owner, manager, director or employee of a care home where the donor lives
Most people when they start making an LPA do not know who the certificate provider will be, most often because it can be difficult to arrange in advance for the witnesses and someone else who qualifies as a certificate provider to be present at the same time. This is fine – the details of the certificate provider can be added at the time the signatures are witnessed.
Making your LPA
In conjunction with Unforgettable.org, a dementia product and services retailer, Net Lawman offers a free online service that allows you to make a lasting power of attorney.
We also provide a free online will writing service, and free last will and testament templates for download and completion offline.