A Deputyship Order is only necessary if the person in question – your mother – cannot make a Lasting Power of Attorney. So the question is really, does your mother still have the required mental capacity to make a Lasting Power of Attorney? Certainly this would be preferable as LPAs are cheaper to make and register than a Deputyship Order.
It is impossible for me to assess remotely whether or not your mother still has capacity – however, on the question of whether it matters that she is confused some days and not others, I think it would be useful to look at the law which is contained in the Mental Capacity Act 2005.
Section 2 sets out what is meant by a person ‘lacking capacity’.
2 People who lack capacity
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to—
(a) a person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
So lack of capacity is assessed at the material time. If your mother were to make an appointment with a solicitor on a ‘good day’, it may be at the ‘material time’ she has capacity because she can make a decision as to who she would want to appoint as her attorney.
Section 3 continues, explaining what is meant by ‘making decisions’:
Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—
(a) deciding one way or another, or
(b) failing to make the decision.
So you will see that these two sections must be considered carefully in order to answer your question. Whilst sometimes your mother may lack capacity because she cannot understand and retain information relevant to a decision, at other times this is not true. Further Section 3 says that if you need to present the information in a particular way so that your mother understands it (and that might include presenting it on a particular ‘good’ day) this is acceptable. Further, Section 3(3) shows that the fact that she might sometimes be forgetful is not a bar to her making an LPA.
I would also refer you to Section 1 which sets out the key principles of the Act. These include:
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
So capacity is assumed and every step must be taken to give your mother the opportunity of making the decision for herself (i.e. choosing her own attorneys) before a Deputyship Order is considered. Therefore whilst I cannot conclusively say that your mother has the required mental capacity to make a Lasting Power of Attorney, I believe that the fact she is confused some days is not a bar to finding that she does.
Although we will usually be the certificate provider for clients when assisting them with making a Lasting Power of Attorney, if there is any doubt as to a client’s capacity we will usually ask for confirmation. This might be from a doctor or consultant for example. We do have a form we can provide which ensures that the person providing evidence covers all matters we would need to know about.