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Loss of Capacity: Think Ahead

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Mental capacity and planning for the future

If a person loses mental capacity, and they have not properly prepared Power of Attorney forms, their affairs cannot be managed without an application to the  court to appoint a ‘deputy’.  This can be a long and expensive process and will involve annual court fees and assessments.  It is important to remember that if a loved one has lost mental capacity without having made a Power of Attorney,  relatives are not automatically given the right to access the  bank account or other funds, even to pay debts such as mortgages, bills or care fees.

What is mental capacity?

Every day we make decisions about our lives.  The ability to make these decisions is known as mental capacity.  The Mental Capacity Act 2005 sets out key situations when a person is deemed unable to make a decision which includes understanding information relevant to a decision, the ability to retain such information long enough to make the decision and communicating the decision.  Mental capacity can be affected by a number of things including dementia, brain injuries or having had a stroke.

Who decides if someone has capacity?

When you make a Power of Attorney, a ‘certificate provider’ decides if you’re capable of making that choice. They can be someone you’ve known for over two years or a professional, such as a doctor or lawyer.

What to do next

The best time to act is now as you can only set up an LPA before you lose mental capacity.

We offer a free 30 minute appointment in discuss your situation before any work is carried out. Making a Lasting Power of Attorney with us costs from £200 plus VAT and we would be glad to hear from you to answer any queries and book an appointment.  If you are interested, please call us on 01752 205202 or email

Alice Carter-Tyler, Trainee Solicitor