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
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.
Information relevant to the decision
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)).
These salient details vary from matter to matter and there is a duty to explain them to the person in a way that is relevant to that person's needs and circumstances (Mental Capacity Act 2005 section 3(2)).
Identifying the salient details for a particular matter requires a concept analysis of the decision to break it down into its essential elements. This challenge is further complicated by the need to ensure that the threshold for capacity is not set so high as to discriminate against vulnerable individuals (LBL v RYJ (2010)).
Fortunately, the courts usually set out the salient details for a particular matter in their rulings and these can be used as the foundation of a capacity assessment. By applying the salient details established by the court to the context of the person's situation the information relevant to the decision can be established (Tower Hamlets LBC v PB [2020]).
Salient details for executing an LPA
In Re Collis (2010), the Court of Protection was asked to order the public guardian not to register an LPA on the grounds that the donor lacked capacity to execute the instrument.
In considering the information the person needed to have understood, retained, used and weighed when executing the LPA the court considered the following to be the salient details:
More recently, in the case of The Public Guardian v RI and others [2022] the Court of Protection was asked to cancel the registration of an LPA in respect of a person with a learning disability who lived in a care home.
The man was aged 60 years, he had a lifelong learning disability and chronic schizophrenia, and was unable to live independently, although he was able to carry out many daily activities unaided. While his mother had been alive, he had lived with her, and she had taken care of his affairs. In 2009, when the mother became concerned about her health deteriorating, she sought professional advice and decided that an LPA was the best option, with herself and the man's brothers as his attorneys. The instrument was registered with the Office of the Public Guardian and became effective.
In 2019, the care home raised concerns about the management of the man's financial affairs. The public guardian investigated and was satisfied that there had been no misconduct by the attorneys and no undue influence on the man to make the LPA. However, it was concerned that he might not have had the capacity to execute it.
A medical expert assessed him and concluded that he did not have the capacity to manage his finances and that it was most likely that he had not had capacity in 2009. His brothers, as attorneys, argued that his mental health had deteriorated significantly since moving into the care home and the loss of their mother, but that in 2009 he had understood the LPA.
The court held that on balance the man had lacked capacity at the time that the LPA had been executed in 2009. In coming to its decision, the court revised the information that was relevant to a decision to execute an LPA to include:
This information forms the threshold for capacity to execute an LPA and is the minimum information the person needs to understand, retain, use and weigh, if the presumption of capacity is not to be rebutted.
Conclusion
When assessing capacity to execute an LPA, the courts emphasise the need for a person to understand, retain, use and weigh essential information relevant to that decision.
Cases such as Re Collis [2010] and Public Guardian v RI established the salient details that form the threshold for assessing mental capacity to execute an LPA under the Mental Capacity Act 2005. These salient details need to be applied in a context-sensitive manner to the circumstances of the case to ensure that they are relevant and that the person's ability to make the decision to execute an LPA is fairly assessed.