THE LASTING POWER OF ATTORNEY (LPA)
What is mental incapacity under the LPA regime?
The Lasting Power of Attorney (LPA) – What is it?
Under the Mental Capacity Act (MCA), individuals who wish to make advance plans for themselves can do so through a legal document known as the Lasting Power of Attorney (LPA). The LPA allows the donor to appoint a donee to act or make decisions on his behalf in matters relating to his personal welfare and/or property and finances.
The LPA framework facilitates anticipatory decision making, allowing one to plan for the future and better manage the risks to our personal welfare and assets.
The Donee can only exercise his powers under the LPA when the Donor is mentally incapacitated.
What is Incapacity?
- MCA recognises that mental incapacity is distinct from mental illness
- Mental Incapacity can be temporary – e.g. intoxication
- S4 MCA: Unable to make a decision for himself in relation to the matter because of, or a disturbance in the functioning of, the mind or brain.
➔ Mental Incapacity is issue and time specific.
How is mental incapacity assessed?
Re BKR  SGHC 201
2 Step Test
- Functional Component: Individual unable to make decision for himself in relation to the matter
S5 MCA: A person is unable to make a decision where he cannot:-
- Understand the information;
- Retain the information;
- Use or weigh information; or
- Communicate his decision.
- Clinical Component: An Impairment of, or disturbance in the functioning of, the mind or brain which causes the inability
- Assesed on the totality of evidence before the court
The Lasting Power of Attorney