In recent years, people have been thinking about how they can protect themselves in the event that they lose capacity in future. Unfortunately, sometimes those protective measures cannot be put in place in time. As solicitors, we often see people in a “grey” area where it is not clear whether or not someone has capacity to do what they are planning. In that situation, we would look for a capacity assessment to be obtained.
What is a capacity assessment?
A capacity assessment is exactly what it sounds like – an assessment of a person’s capacity. This is normally performed by a medical professional or a social worker with expertise in the mental disorder (if there is one) or in dealing with vulnerable people.
“Capacity” is a wide-ranging term and it must always be assessed in relation to a specific issue. For example, many people who lack the capacity to manage a complex investment portfolio still have the capacity to decide whether they want to spend 70p on a chocolate bar.
Why does my loved one need a capacity assessment?
There are a number of reasons why a capacity assessment might be required. As a Private Client solicitor, the most common reasons why I will request a capacity assessment for a client is where they are looking to make a Will or a Lasting Power of Attorney (LPA). If I am unsure whether the client fully understands what I am saying or what the document does then I would ask for an expert opinion on the matter before proceeding.
How do I get a capacity assessment?
Whilst some GPs will perform capacity assessments, others will not. Unfortunately with GPs facing rising patient numbers, sometimes they can take weeks or months to respond to a request for a capacity assessment, even if the answer is a simple “no”.
If your loved one is under the care of someone for a neurological, cognitive, psychiatric or psychological disorder then they may be in touch with a specialist. The specialist may be able to provide the assessment of your loved one’s capacity.
Even in lockdown, many professionals are still able to conduct capacity assessments remotely.
If you have instructed Brethertons to prepare a Will or an LPA, or to deal with a Court of Protection application, then we can assist with deciding who might be best placed to provide a capacity assessment for your loved one.
What if the assessment says that my loved one has capacity?
That’s great news! If someone has capacity to do something then they should be encouraged to do it. The assessment might also give you ways that you can help support your loved one.
What if the assessment says that my loved one doesn’t have capacity?
It entirely depends on the circumstances – as I said earlier, just because someone doesn’t have the capacity to do one thing, it doesn’t mean that they lack the capacity to do everything!
If the assessment relates to the management of finances, you might want to think about contacting any Attorneys named under an Enduring Power of Attorney (EPA) or LPA as they may need to begin acting.
An EPA needs to be registered with the Office of the Public Guardian (OPG) before it can be used for someone who has lost capacity.
If an LPA has already been registered with the OPG before your loved one (called the “donor”) lost capacity, it can be used immediately once they do lose capacity. If the LPA hasn’t been registered before the donor loses capacity, the LPA needs to be registered by the Attorneys. Like an EPA, an LPA cannot be used for a person who has lost capacity unless it has been registered with the OPG.
If there is no EPA or LPA in place then you might need to think about who could act as a Deputy to manage their finances for them. Whether or not a Deputy is needed depends on the particular situation that your loved one is in.
If your loved one has lost the capacity to deal with their financial affairs, the Wills, Trusts and Probate team at Brethertons can assist with the registration of EPAs and LPAs, and provide advice to Attorneys on their duties and obligations. If there is no EPA or LPA in place then we can discuss with you whether an application to be appointed as a Deputy is suitable. If so, we can assist with making the application to the Court.
For more information, please visit our dedicated pages on Powers of Attorney, Court of Protection, and Attorney and Deputy advice.
To make an appointment with one of our specialist lawyers, please phone 01788 579579.