Mental Capacity Considerations in Powers of Attorney and Enduring Guardianship

Abstract

Whether a person has, or does not have, sufficient mental capacity to make decisions regarding his or her affairs is of significant importance – particularly for medical practitioners who may be called upon to advise as to whether capacity has been lost or whose medical treatment of the person will be affected by the question of their capacity (e.g., determining who will be able to instruct the practitioner). Elsewhere in this publication, there is an examination of capacity insofar as it relates to will making; this is known as testamentary capacity. This chapter identifies two other distinct areas in which capacity is of particular importance – in the setting up and use of powers of attorney or financial management orders and in the activation of appointments of enduring guardian together with consideration of the rise of advance health-care directives.