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Mental health and mental capacity

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… Planning future support from loved ones in your decision making is vital

This week is Mental Health Awareness Week. Our private client team regularly advises clients on issues relating to mental capacity. The difference between mental capacity and mental health is broadly speaking that mental health encompasses a person’s psychological and emotional wellbeing whereas mental capacity relates to their ability to make decisions in different situations. The two often interact and if a person’s mental health is such that it is affecting their decision making capability then they may lack mental capacity. In such situations family, friends and loved ones would want to be able to step in to support and help make decisions for them. One way this can be achieved is to put in place Lasting Powers of Attorney.

There are two types of Lasting Power of Attorney, one for property and financial affairs and one for health and welfare matters.

Lasting Power of Attorney for Health and Welfare

The health and welfare LPA was welcomed by private client lawyers when it was introduced in October 2007. Before it was introduced a person could only appoint someone to manage their property and financial affairs (see below). However it is as important to be able to ensure that someone who loses mental capacity is properly cared for and receives the correct care and medical treatment.

This LPA, which will only work if a person has lost mental capacity, allows the attorneys (the people chosen to make decisions by the person making the LPA) to make more personal decisions about what care the person should receive, what medical treatments they should be given, where they should live and so on. They can also consent to whether they would wish their attorneys to be able to consent or refuse life sustaining treatment on their behalf or not.

Lasting Power of Attorney for Property and Financial Affairs

This LPA replaced the previous Enduring Power of Attorney in October 2007. With this type of LPA a person can choose whether they would want their attorneys to be able to make decisions as soon as the LPA is registered if they give consent, or if they would only want it to work should they lose mental capacity. The former can be useful if mobility has become an issue, if someone finds dealing with paperwork too onerous or if you are a business person who goes oversees a lot and needs someone back in the UK able to deal with your financial affairs. The attorneys would be able to pay bills, sign cheques, buy and sell property and deal with investments if the LPA is drafted properly.

To be valid both Lasting Powers of Attorney need to be registered with the Office of the Public Guardian and we deal with this for clients as soon as the LPAs have been signed by all relevant parties to avoid anything going astray and preventing them from being used when they are needed.

The Court of Protection

To make valid LPAs a person needs to have mental capacity. If they do not, and there are no registered LPAs in place, then an application will have to be made to the Court of Protection for a deputy to be appointed. This can be a very expensive and lengthy process and it often happens at a time when important decisions need to be taken but the lack of LPA prevents them. Perhaps most importantly the person concerned has little or no say in who applies to be their deputy.

We are highly experienced in preparing and registering Lasting Powers of Attorney and making applications to the Court of Protection. If you need advice on this or any other issue to do with managing your personal affairs please contact our Wills, Trusts and Probate Team on 01733 882800 or email [email protected] to discuss how we can help. In the meantime, we hope you and your loved ones stay safe and well.


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