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The Attorney Forms You Need, Without The Hassle...

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Dementia is a debilitating illness currently without cure. We regularly see the misery it causes and back the 'Dementia Friends' initiative to raise awareness of dementia in our society, and to bring increased support and dignity to sufferers. LPA Forms are a crucial tool in aiding the carers and loved ones of those diagnosed with having dementia.

Assessing Mental Capacity

In simple terms having mental capacity means a person has the ability to make their own decisions. The point when someone is judged to lack mental capacity is generally reached when they cannot do one or more of the following:

1. Understand information given to them;

2. Retain the information given long enough to make a decision;

3. Weigh up the information available to make a decision, and

4. Communicate their decision.

A lack of mental capacity can occur in a number ways, but mostly results from: a stroke or brain injury; a mental health problem; dementia; a learning disability; confusion, drowsiness or unconsciousness because of an illness or treatment for it; or substance misuse.

Mental capacity is perhaps best viewed as a spectrum, whereby the extent to which a person 'lacks' mental capacity could sit somewhere between having full mental capacity at one end and having a complete lack of mental capacity at the other. A person may be able to make some decisions for themselves, such as what to eat and what to wear, but not more complex decisions may be beyond their capability. And the extent to which a person can make a particular decision may vary from one time to another.

Who decides if the Donor has Capacity?

The Mental Capacity Act 2005 (MCA) permits the attorney(s) of a registered LPA form to determine whether a donor possesses sufficient mental capacity in most scenarios. Regular visits to the donor's doctor for validation is not generally required or encouraged. However, the MCA says that an attorney must have a 'reasonable belief' that a donor lacks capacity to make a decision for themselves before the attorney acts for them.

When considering whether a donor has capacity, the 'reasonable belief' test would involve the attorney considering the following points:

1. Does the donor have a general understanding of what decision needs to be made?

2. Does the donor have a general understanding of the consequences of the decision?

3. Can the donor weigh up relevant information and use it to make a decision?

4. Is there any way that the attorney could help them to make the decision for themselves?

5. Is there any way that the donor can help them to communicate their decision and wishes?

Just because the donor makes a different decision from that which the attorney expected them to make, or the donor believes the decision they've come to is an unwise one, doesn't mean that the donor lacks capacity to make the decision in question.