Mental Capacity and Lasting Power of Attorney

This information has been designed by LPFT Carers Council to assist carers and relatives to understand mental capacity and lasting power of attorney. 

The Mental Capacity Act 2005

To make a decision we need to:

  • Understand relevant information
  • Remember it for long enough to make a decision
  • Weigh up (or use) the relevant information when making the decision
  • Communicate our decision

A person’s ability to do this may be affected by things like a learning disability, dementia or a mental health problem. The ability to make a decision, or capacity can change; A person with epilepsy may not be able to make a decision during the day after a seizure. Someone with a mental health problem may not be able to make a decision now, but in a week’s time they may feel much better.

There are five principles to consider:

The 4th and 5th principles apply only when a person has been assessed to not have mental capacity for the decision in question.

Lasting Power of Attorney (LPA)

A LPA is a legal document that gives someone you trust the authority to help you make decisions, or to make them and take actions for you if you become unable to do these things yourself.

You can only set one up at a time when you have the capacity to make the decision of having an LPA yourself.

There are two types of LPA:

  • Property and Financial Affairs
  • Health and Welfare.

You can have the same person act as an attorney for both LPA.  However, you have to apply on different forms for each type of LPA. You can also appoint different people as attorneys. When any appointed attorney acts on your behalf, they will not able to choose any decision that they wish as they will be bound by the principles of the Mental Capacity Act 1-5 as above.