When planning for the future, especially regarding matters like health, finances, and estates, one of the most crucial factors to consider is mental capacity. Whether you’re drafting a Will, setting up a Lasting Power of Attorney (LPA), or handling other legal decisions, it is essential to properly assess and understand capacity, as it directly affects the legality and validity of your decisions.

At Lewis Nedas, we recognise that navigating these legal matters can be complex, especially when it comes to ensuring that your wishes are both understood and executed appropriately. This guide will delve into the key considerations surrounding mental capacity, LPAs, and Wills, highlighting the critical steps to ensure the process is smooth, legally sound, and most importantly, reflective of your intentions.

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What is Mental Capacity and How Does it Relate to Wills and LPAs?

Mental capacity refers to an individual’s ability to make informed decisions. This includes the ability to understand relevant information, retain that information long enough to make a decision, weigh the information in order to make an informed choice, and communicate the decision effectively. Whether dealing with the creation of a Will or the appointment of an Attorney through an LPA, it is imperative that the individual is mentally sound when making these significant decisions.

Today, most people are expected to live longer than their ancestors, which means a greater number of individuals will experience health issues and a decline in mental sharpness typically linked to ageing. It’s important to factor in these realities when considering mental capacity and long-term planning, especially when creating legal documents like Wills or setting up an LPA. Ageing or declining health can impact one’s mental faculties, making it necessary to establish safeguards and legal instruments early.

Wills and Mental Capacity – Common Law Test

When drafting a Will, it’s essential that the person creating the Will (the “testator”) has testamentary capacity. This means the individual must have the mental ability to make a valid Will. For a Will to be legally binding, the testator must:

1. Understand the Nature and Effect of the Will: The individual must recognise that the document they are signing is a legal declaration of how their estate will be distributed upon their death.
2. Know the Extent of Their Estate: The testator should be aware of their assets, including real estate, investments, personal property, and other holdings.
3. Comprehend the Impact of Beneficiaries: The testator must understand the consequences of including or excluding beneficiaries, particularly when it comes to family members or dependents who may otherwise have a claim to the estate.
4. Be Free from Coercion: The decision must be voluntary, without undue pressure or influence from others. Coercion can invalidate the Will and lead to legal disputes.

Even individuals with serious conditions, such as dementia, can still make a valid Will, provided they have mental capacity at the time of signing. If there is any doubt about capacity, a doctor’s statement confirming the individual’s understanding of the Will is strongly recommended. We can assist with this process and liaise with medical specialists to obtain an appropriate assessment.

Lasting Power of Attorney and the Mental Capacity Act 2005

A Lasting Power of Attorney enables an individual (the “Donor”) to appoint someone (the “Attorney”) to make decisions on their behalf if they lose the capacity to do so in the future. There are two types of LPA:

1. Property and Financial Affairs LPA: Allows the Attorney to handle financial matters, such as paying bills and managing assets.
2. Health and Welfare LPA: Enables the Attorney to make decisions about healthcare, medical treatment, and living arrangements.

For an LPA to be valid, the Donor must have mental capacity at the time of signing. If the Donor later loses capacity, the LPA remains in effect. However, if the Donor lacks capacity when the LPA is created, the Court of Protection may appoint a deputy to manage their affairs.

The Mental Capacity Act 2005 provides essential principles that Attorneys must follow when making decisions on the Donor’s behalf. These principles ensure decisions respect the Donor’s autonomy and best interests:

• Assume Capacity: Attorneys must not assume someone lacks capacity without proper evidence. An individual has the right to make decisions unless it is proven that they cannot. The Mental Capacity Act outlines a test to assess if someone can understand, retain, weigh, and communicate their decisions.
• Act in the Donor’s Best Interests: Attorneys must take into account the Donor’s views, values, and beliefs before making decisions, aiming to reflect what the Donor would have chosen if they had capacity.
• Minimise Restrictions: Attorneys must opt for the least restrictive options, ensuring the Donor’s rights and autonomy are preserved while making necessary decisions on their behalf.

For more information on these assessments, Lasting Powers of Attorney, and the duties of Attorneys, please refer to our detailed guides.

Proper Signing Procedures for Wills:

A Will is only valid if it is executed in accordance with strict legal requirements:

• Witnessing: The Will must be signed in the presence of at least two independent witnesses who are over the age of 18. These witnesses cannot be beneficiaries or the spouses of beneficiaries to avoid any conflicts of interest. The role of the witnesses is to confirm that the testator has signed the Will voluntarily and with full understanding.
• Witnesses’ Role: Witnesses must sign the document in the presence of the testator, and they must also acknowledge that they witnessed the testator’s signing. If the testator cannot physically sign the Will, they may direct someone else to sign on their behalf, but this must be documented clearly within the signing clause.
• Proper Dating: A Will must be correctly dated to ensure there is no ambiguity about the testator’s intentions. Amendments to the Will after it has been signed must follow the formal procedure of creating a Codicil. Informal, handwritten changes on the document will generally not be valid.

Proper Signing Procedures for LPAs:

Just as with Wills, LPAs must follow strict protocols to ensure that mental capacity is properly established:

• Witnesses: An LPA must be signed in the presence of a witness who is 18 years or older. The witness confirms that the Donor understands the nature of the document and is signing it voluntarily. Importantly, a solicitor can act as a witness for the LPA, ensuring the legal process is properly followed.
• Certification: If there is doubt about the Donor’s mental capacity, the LPA must be certified by a professional to confirm that the Donor understands the nature of the document and the powers they are granting to their Attorney. A solicitor can also act as the certifier, providing professional verification of the Donor’s understanding.
• Attorneys’ Signatures: The appointed Attorneys must also sign the LPA, acknowledging their role and agreeing to act on behalf of the Donor.

The Golden Rule: Seek Professional Advice

When it comes to preparing a Will or setting up a Lasting Power of Attorney, professional legal advice isn’t just helpful—it’s essential. Mistakes in drafting, witnessing, or assessing capacity can lead to delays, disputes, or even invalidation of the document.

At Lewis Nedas, we follow the well-established “Golden Rule”: where there is any doubt over mental capacity—particularly in older or vulnerable individuals—a solicitor should be involved, and, where appropriate, a medical opinion should be obtained. This helps ensure that the individual understands the nature and effect of the document, and that the process stands up to scrutiny if ever challenged.

Our experienced solicitors are here to provide clear, practical guidance throughout. We will help ensure your documents are properly executed, reflect your true intentions, and are protected against future disputes or legal challenges.

Our Private Client Team Can Help

At Lewis Nedas Law, we provide expert support with Wills, LPAs, and estate planning, ensuring your documents are legally robust and tailored to your needs. We also offer guidance on sensitive issues such as exclusions and potential disputes, delivering clear advice every step of the way.

We can support you with:

• Appointing trusted Attorneys for your LPA
• Navigating health and welfare decisions
• Protecting your estate for future generations
• Ensuring your wishes are respected and upheld

Contact us for Wills and Lasting Power of Attorney Advice

📞 Call Rose Varsani on 0207 387 2032
📧 Email: pvarsani@lewisnedas.co.uk

Disclaimer:

This blog is for general information only and does not constitute legal advice. For personal guidance, please contact our team to speak with one of our solicitors.