Clarity on capacity to create an LPA

There has been no judicial guidance on what capacity a person needs to create a Lasting Power of Attorney (LPA) for over 12 years.

An LPA is a document that allows a person (‘donor’) to authorise another person or people (‘attorney’ or ‘attorneys’) to make certain decisions about them in the event that the donor can no longer do this for himself. This has caused some difficulties for the now 5.3m people that have created LPAs since 2007, when it became possible to make one.

One of the key elements to the creation of an LPA is that a person, called a Certificate Provider, must confirm that, in their opinion, the person creating an LPA understands the nature and effect of creating an LPA, and that they are not subject to fraud or undue influence in their decision to create one. Save for some modest pointers in section 10 of the LPA forms (Lasting power of attorney forms – GOV.UK (www.gov.uk), the Office of the Public Guardian, who are the government body responsible for creating, registering and monitoring the use of attorneyships has not produced any official guidance available to Certificate Providers in how to carry out their role, what evidence they would like to have produced about capacity, nor what the test of capacity is for creating an LPA. Therefore, the publishing of a new case, The Public Guardian v RI & Ors [2022] EWCOP 22 (07 June 2022) (bailii.org), by the Court of Protection on this matter is warmly welcomed by those working in the care and legal sectors.

In this case, the Court of Protection has confirmed that in order to make a new LPA, at the time that the LPA was made, the donor must have been able to understand, retain, use and weigh up the relevant information regarding the below, and make a decision on [paragraph 16]:

1. the effect of the LPA;
2. who the attorneys were;
3. the scope of the attorneys’ powers and that the MCA 2005 restricted the exercise of their powers;
4. when the attorneys could exercise those powers, including the need for the LPA to be executed before it was effective;
5. the scope of the assets the attorneys could deal with under the LPA; the power of the donor to revoke the LPA when they had capacity to do so;
6. the pros and cons of executing the particular LPA and of not doing so.

The relevant information would include the reasonably foreseeable consequences of deciding, or failing to decide, one way or another in respect of whether to make the particular LPA being proposed.

In the case in hand, a 12 year old LPA was overturned, and good practice guidance was given in respect of making LPAs for those with learning disabilities. In particular, the Court suggested that at the very least, the Certificate Provider should confirm what their experience is ‘in particular in making a sufficient assessment of the capacity of a prospective donor who is known to have a learning disability or other impairment which might affect their capacity to execute an LPA – their usual practice or their specific recollections of the making of the LPA’ [paragraph 27]. Further, in any future dispute where the capacity of a donor to create an LPA is in the subject of the hearing, the Court has given guidance that the following evidence would also be helpful in assisting the Court to reach a conclusion [paragraph 27]:

• Evidence from carers and family members relevant to patient’s capacity to execute an LPA at the relevant time and to any changes in patient’s condition, relevant to capacity, over time.
• Medical evidence, capacity assessments, assessments for benefits, records from carers or activity centres, or other professional evidence roughly contemporaneous with the relevant date when the LPA was executed.
• An assessment by a suitably qualified and experienced person of patient’s current capacity and reasoned opinion as to their capacity to execute the LPA at the relevant time, such opinion being informed by review of relevant medical records, contemporaneous assessments, and the evidence from carers and family members.

The guidance given is firmly in line with the Mental Capacity Act 2005, and should provide families, capacity assessors and professionals alike with much needed guidance on ensuring that anybody making an LPA has the necessary mental capacity to do so.

For further information on the role of an attorney, please see this short video on the topic, What is the Difference Between Lasting Power of Attorney, Enduring Power of Attorney & Deputyship?. For further information on assessing capacity, please see this short video on the topic What is the test for mental capacity?