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7 February 2022

Mental Capacity Act: what you should know for Powers of Attorney

The Mental Capacity Act sets out guidelines for people granted a Lasting Power of Attorney. Woodcock Notary Public can assist with professional, compassionate advice if you or a loved one find yourselves in need of a Lasting Power of Attorney.

Estimated reading time: 2 minutes

A person’s ability to make decisions is diminished in certain circumstances. When an individual becomes ill or mentally hindered, the decisions they make have to be made by a third party. The Mental Capacity Act sets out the procedures required for such circumstances.

What is the Mental Capacity Act?

The Mental Capacity Act made it easier to protect the interests of people who lack the capacity to make decisions.

The act applies to people who are 16 years old and over and concerns itself with small and large decisions, from shopping to powers of attorney.

People who have a lack of mental capacity in this way have often suffered/been diagnosed with:

Dementia
A stroke
Brain surgery
Mental illness
A severe learning disability.

An individual can lack mental capacity in some areas but not others. For example, they might not be able to make complex financial decisions but they could decide what they want to wear.

The Mental Capacity Act and Lasting Powers of Attorney

A lasting power of attorney (LPA) is granted when someone wants another person to make their decisions in the future. These decisions could be about health, welfare, or finances. Each decision requires a separate legal document.

An individual can grant a LPA at any time. However, a third party can only make decisions on someone else’s behalf once the mental capacity of the principle is diminished.

If you have an LPA you become the ‘attorney’. As an attorney, you must:

Make sure all legal principles are followed
Check whether the principle has the capacity to make the decision themselves.

People can grant powers of attorney at any time when the person making it has the mental capacity to do so, provided they’re 18 or over.

What the Mental Capacity Act could mean for you

An individual can grant a LPA at any time. However, a third party can only make decisions on someone else’s behalf once the mental capacity of the principle is diminished.

If you have an LPA you become the ‘attorney’. As an attorney, you must:

Make sure all legal principles are followed
Check whether the principle has the capacity to make the decision themselves.

People can grant powers of attorney at any time when the person making it has the mental capacity to do so, provided they’re 18 or over.

The Court of Protection

The role of the Court of protection is simple. It ensures that people’s best interests are considered when decisions are made on their behalf. It also aims to settle disputes between parties when there is a different view about an individual’s best interests.