Capacity to execute a lasting power of attorney

Last month, in the first of a series of articles on lasting powers of attorney (LPA), the key features of an LPA were identified as follows:

Executing an LPA means to create and register the instrument so that it becomes effective. The Mental Capacity Act 2005, section 9(2)(c), requires that at the time a person executes an LPA they are aged over 18 years and have the capacity to execute the instrument.

Section 2(1) of the 2005 Act states:

‘…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 a disturbance in the functioning of, the mind or brain.

For the purpose of the Mental Capacity Act 2004 capacity is both matter and time specific.

In the case of A local authority v JB [2021], the UK Supreme Court held that, to establish whether a person could make a decision in relation to the matter in question, it is necessary to correctly formulate the matter. This will then lead to the identification of information relevant to that particular decision the person will need to understand, retain, use and weigh as part of the decision-making process (Mental Capacity Act 2005, section 3(1)).