- General considerations
- Are there times of the day when the person's understanding is better?
- Are there locations where he may feel more at ease?
- Are there any communication or language needs that could have an impact on understanding?
- If necessary, consult with appropriate people on the best methods of communication.
- Good social or language skills and behavior do not necessarily reflect the person's capacity to make specific decisions.
- Do not rely on yes or no answers.
- Keep a record of the meeting and your opinion. It is advisable for you to take a copy of the document you have signed, in case you are asked to refer to it in Court.
- The capacity test
This is based on applying sections 2 and 3 of the Mental Capacity Act 2005 and the cases of Re K and Re F, as it is believed it should apply to lasting powers of attorney.
The donor should be able to understand:
- What a lasting power of attorney is.
- Why he wants to make the power.
- Whom he is appointing as an attorney.
- Why he has chosen to appoint that person as attorney.
- What powers are being given to the attorney.
In particular, the relevant information that the donor would need to understand would include:
- That the attorney will be able to assume complete authority over:
- the donor's property and affairs, if granting a property or affairs lasting power, or
- the donor's personal welfare and medical matters, if granting a welfare lasting power, subject to any conditions or restrictions placed in the power.
- That the attorney will be able to
- do anything with the donor's property and affairs which the donor could have done, if granting a property or affairs lasting power, or
- make personal welfare or medical decisions, if granting a welfare lasting power, which the donor could have made if he had capacity, subject to any conditions or restrictions placed in the power.
- The authority in the power includes authority to make decisions on the donor's behalf in circumstances where he no longer has capacity, and in the case of a property and affairs power, unless there is a restriction placed on the power, authority to use the power when the donor has capacity.
- Where expressly provided in a welfare power, authority to give or refuse consent to the carrying out or continuation of life-sustaining treatment, which would be determined by the health care professional as necessary to sustain life. As such, the authority would depend on the circumstances and not the treatment.
- That he can revoke the power at any time provided he has mental capacity irrespective whether or not it is registered with the Public Guardian.
- (Applying section 3(4) of the MCA)The donor would have to understand the reasonable foreseeable consequences of making or not making the power or making it in different terms or appointing different people.
- Certifying capacity as the certificate provider
As a certificate provider you must understand what a lasting power is and have read the prescribed form, including the contents of the donor's power with any conditions, restrictions and guidance. This must be confirmed when you sign the certificate in Part B of the prescribed form. If you have already drafted the form and advised the donor, not all of the following will be relevant.
- Ask the donor to explain his understanding of what a lasting power of attorney is.
- Ask the donor to confirm his reasons for making the power (this may also indicate undue pressure).
- Ask the donor to explain the reason he has chosen you as his certificate provider, as it should be his choice.
- It is important to take background information from the donor. Use the general mental capacity record sheet for this purpose. In particular: ascertain the extent of the donor's property and affairs, particularly if the donor is making a property and affairs power, but it may also be relevant for a welfare power as it may assist in understanding the donor's reasons for the terms of the power.
Ask about the donor's health, and domestic situation, as this may be helpful in forming an opinion
It may be appropriate to ask to see health care records or consult others, such as medics, if there are reasonable doubts of the donor's capacity.
Ask about any cultural, ethnical, moral, spiritual or religious factors which may have a bearing on the person's way of thinking, behaviour or communication.
- Ask the donor why he has chosen his particular attorney. Consider if there is any pressure being used and if that pressure is excessive or greater than the circumstances warrant.
- Ask the donor to explain what the power enables his attorney to do (i.e. it enables the attorney to make financial/welfare/medical decisions when he is unable to).
- Ask the donor in what circumstances he wants the power is to be used by his attorney (i.e. when he lacks mental capacity and with an unrestricted property and affairs power, when he has capacity).
- Ask the donor to explain what types of decisions he would like the attorney to make on his behalf and what decisions he does not want the attorney to make (if any). In general terms, but considering the extent of the authority he is granting, are these reflected in the power?
- If there are any restrictions or conditions in the power, ask the donor to confirm what he believes they achieve.
- Ask the donor what is the difference between restrictions and conditions and any guidance he has in the power (the former being mandatory and the latter discretionary).
- Ascertain how the donor expects the power to be used in medical and welfare situations. In particular, for life sustaining treatment decisions, where expressly provided in the welfare power. Life sustaining treatment is determined by the circumstances rather than the treatment.
- Ask the donor to explain what would happen if he did not make the power in the terms intended. Does he understand that no one would be authorised to make those decisions which the power covers and that it could mean that an application may need to be made to the Court of Protection for specific authority.
- Ask the donor to explain when he could cancel the power (i.e. any time provided he has mental capacity).
- In the event the donor has memory problems, it is advisable to ask the donor to again explain why he wants to make the power in the terms given, to ensure that the donor understands the purpose and the scope of the power. It may also show that the donor has used the relevant information about making the power as part of the decision making process, i.e. he has retained the relevant information and used it to arrive at a decision. It may also show that even though the decision may appear unwise, he has weighed up the relevant information.
- Types of decisions that can be made with an unrestricted welfare power
- Where the donor should live and who they should live with.
- The donor's day-to-day care, including diet and dress.
- Consenting to or refusing medical examinations and treatment on the donor's behalf.
- Arrangements needed for the donor to be given medical, dental or optical treatment.
- Assessments for and provision of community care services.
- Whether the donor should take part in social activities, leisure activities, education or training.
- The donor's personal correspondence and papers.
- Rights of access to personal information about the donor.
- Complaints about the donor's care or treatment.
- Types of decisions that can be made with an unrestricted property and addairs power
- Buying or selling property.
- Opening, closing or operating any bank, building society or other account.
- Giving access to the donor's financial information claiming, receiving and using (on the donor's behalf) all benefits, pensions, allowances and rebates.
- Receiving any income, inheritance or other entitlement on behalf of the donor.
- Dealing with the donor's tax affairs.
- Paying the donor's mortgage, rent and household expenses.
- Insuring, maintaining and repairing the donor's property.
- Investing the donor's savings.
- Making limited gifts on the donor's behalf.
- Paying for private medical care and residential care or nursing home.
Client's Guide to Acting as a Certificate Provider
The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.