When do you use a lasting power of attorney?

Legal clinic round up – December 2018

We hold free legal clinics in Kingsbridge library on the third Tuesday each month and in Dartmouth library on the first Friday each month. At the clinics we speak to people with a wide variety of legal issues.   

In December we met a lady who had agreed to be appointed as an attorney for her father.  She had been appointed as his attorney under a property and finance LPA which had been registered.

The lady was concerned that whilst her father still had good physical health he was becoming increasingly forgetful. She thought he was making strange financial decisions and he had recently purchased a new car which she considered too expensive and quite frivolous. She wanted to know whether she could challenge his decisions and stop him spending all her inheritance.

Mental capacity means having the ability to make a decision at the time that the decision needs to be made. So long as her father understands the decision he needed to make, why he needed to make it and information relevant to the decision then he has capacity. Even though she was appointed as his attorney, whilst her father still had mental capacity, the lady could not make decisions for him unless he consented to her doing so.

On its own, forgetfulness was unlikely to mean that her father did not have capacity, and she should assume that her father does have capacity until it has been established otherwise by an expert.  Making an unwise decision is not an indication that her father did not have capacity. Finally, when she did make a decision for her father she had a duty to consider whether it was in his best interests.