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Lasting powers of attorney (LPAs) were created by the Mental Capacity Act 2005 (MCA 2005) and, apart from the fact that the donor must be over the age of 18, the single most important criterion for creating an LPA is that he must not lack mental capacity. The provisions of MCA 2005 and the supplemental Code of Practice 2007 must be observed, unlike previously with enduring powers of attorney (EPAs) created under the Enduring Powers of Attorney Act 1985, which relied on the common law test of capacity.
Since 1 April 2007, the MCA 2005 has provided a new test for capacity and this should be the starting point in determining a person's capacity to create an LPA. The MCA 2005 does not affect or overrule the common law rules of capacity and the Act is intended to codify rather than replace the existing common law. MCA 2005, s 1(2) establishes that all persons over the age of 16 are presumed to be capable of making their own decisions, and this presumption may only be overridden if it is established that a person lacks capacity to make a particular decision at the material time. The definition of capacity in MCA 2005, s 2(1) is prefaced by the words 'for
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