The importance of ensuring capacity is assessed when making an LPA

The importance of ensuring capacity is assessed when making an LPA

I recently acted in a Court of Protection matter concerning the execution of Lasting Powers of Attorney (LPAs) which ultimately proceeded to a contested trial.  I acted on behalf of the Respondent in the proceedings.

An application to the Court of Protection was made to appoint a Deputy on behalf of P.  At that stage, it was brought to the potential Deputy’s attention that in fact LPAs were already in place for both the donor’s property and financial affairs and her health and welfare.

An application was made to the Court of Protection for Deputyship to be granted on the basis that the donor lacked mental capacity to execute the LPAs. My client was of the view that this was incorrect and maintained that the donor did indeed have sufficient capacity and the experienced solicitor who prepared the documents was of the same opinion.

A retrospective capacity assessment was carried out within the course of the proceedings and an independent expert took the view that having reviewed medical records, the likelihood was that the donor did indeed lack capacity. The solicitor had completed the certificate of capacity on the documents and had not enlisted the assistance of a medical professional to carry out an assessment on the donor to complete this. This was on the basis that the solicitor did not recognise any capacity issues when taking instructions from the donor and felt this was not necessary.

The matter proceeded to a contested trial and the pivotal evidence in the matter was that of the solicitor who prepared the LPAs versus the retrospective capacity report of the independent expert. On the basis of the evidence presented, it was found in this case by the trial judge that the donor was lacking capacity at the time of executing the powers of attorney and thus they were void and revoked accordingly.

The judge in this case was critical of the instructed solicitor who prepared the LPAs and took the view that a capacity assessment should have been undertaken when the LPAs were executed in the form of a certificate provided by a GP because the donor was elderly and had experienced some big changes in her life at that time. In hindsight, this would have assisted in establishing capacity at the time of execution of the documents avoiding the cost and significant time involved in these proceedings.

It was very apparent from dealing with this case the importance of carrying out a thorough and recorded capacity assessment of any donor who is making an LPA or a Will. If in any doubt whatsoever, it is very important to ensure that the necessary steps have been taken to ensure that any prospective donor of a Power of Attorney does have sufficient capacity in order to avoid these types of proceedings arising and to avoid such litigation or negligence claims.

If you have any concerns or queries in relation to any aspect of Court of Protection or LPA issues, please do not hesitate to contact me on 0333 207 1130. I can also be contacted at [email protected].

Kirsty McNulty, Associate at Forbes Solicitors


  • One of the main principles of the MCA “Presumption of capacity” therefore has little meaning if a person must first be scrutinised and prove they have sufficient mental capacity before being “allowed” to make a decision. If this is the case then the Mental Capacity Act Code of Practice ought to be updated and provide the guidance that should clearly state that in cases where the donor is elderly or suffers from any mental illness, legal professionals are not able to act as Certificate Provider without the person being assessed by a medical professional. The Court of Protection generally does not treat family members favourably, preferring to appoint deputies who are able to extract handsome fees from vulnerable clients.

  • Unfortunately, Court of Protection has taken away from the elderly the right to the concept of “presumption of capacity” which is one of the key principles of the MCA. They must prove they have the capacity to make a decision and even if they do, it is easily contested. Court of Protection favours fee charging professional deputies over P’s family.

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