Make a Lasting Power of Attorney While You Still Have the Capacity to Do So

Lasting powers of attorney (LPAs) enable thousands of vulnerable people to have their financial and other affairs managed by others whom they trust. However, as a High Court case showed, it is vital to remember that they can only be granted by those who retain the mental capacity to make their own rational choices.

The case concerned a 60-year-old man who had a lifelong learning disability and a diagnosis of chronic schizophrenia. In 2009, he purported to grant an LPA in favour of his two brothers and his mother. Some years later, an issue arose as to whether he at the time had the mental capacity required to execute a valid LPA.

Ruling on the matter, the Court emphasised that there was no suggestion that there had been any fraud or other misconduct on the part of his attorneys or that he was unduly influenced into making the LPA. All concerned held him in great affection and had throughout sought to act in his best interests.

Shortly before his mother's death, he moved into a care home where he continued to exhibit his love of the arts and his enjoyment of books and music. He could manage many of the activities of daily living independently. He had, however, suffered behavioural problems and was currently subject to deprivation of liberty restrictions which prevented him from leaving the home without supervision.

After considering expert and other evidence, the Court found that he was, in 2009, incapable of making a valid LPA due to an impairment in the functioning of his brain. Although it could be inferred that the nature and importance of the document were explained to him, it could not be inferred that he was able to understand, retain or weigh any advice or information he received.

Having declared the LPA invalid, the Court directed that his affairs should henceforth be managed by a court-appointed deputy or deputies. Their identity, whether lay or professional, would be determined following a further hearing.