When planning for the future, two key legal tools often come into play: a Will and a Lasting Power of Attorney (LPA). But both require one crucial ingredient: mental capacity.
What is mental capacity?
Under the Mental Capacity Act 2005, a person is assumed to have capacity unless proven otherwise. Capacity means being able to:
- Understand relevant information
- Retain that information
- Weigh it up to make a decision
- Communicate the decision
This applies whether someone is making a Will, appointing an attorney, or managing their affairs.
Capacity to make a Will
To make a valid Will, the person must:
- Understand the nature and effect of making a Will
- Know the extent of their estate
- Recognise who might expect to benefit (and who they’re choosing to include or exclude)
- Be free from undue influence or delusions affecting their decisions
This is known as the Banks v Goodfellow test, and it remains the legal benchmark in 2025.
If there’s any doubt about capacity, a medical assessment and a contemporaneous legal record can help protect the Will from future challenges.
Capacity and Lasting Power of Attorney (LPA)
An LPA allows someone (the donor) to appoint trusted individuals (the attorneys) to make decisions on their behalf if they lose capacity in the future.
There are two types:
- Property and Financial Affairs LPA
- Health and Welfare LPA
To create an LPA, the donor must have capacity at the time of signing. If they’ve already lost capacity, the only option is applying to the Court of Protection for a Deputyship, a more complex and costly process.
Planning Ahead
- Act early: Don’t wait until capacity is in question
- Get legal advice: Especially if there are health concerns or family complexities
- Document everything: Medical letters, solicitor notes, and witness statements can be vital
At Clarke Willmott, we help clients navigate these decisions with care, clarity, and confidence, ensuring their wishes are respected and their loved ones protected.
if you would like further information on any of the above tips then please get in touch with our private wealth services team by requesting a consultation.
