Mental capacity explained: assessments, Court of Protection disputes and legal decision-making

Mental capacity is the ability to make a specific decision at the time that decision needs to be made. Under the Mental Capacity Act 2005, a person must be presumed to have capacity unless it is established otherwise. The law also recognises that capacity is decision-specific, meaning someone may be able to make certain decisions independently while lacking capacity to make others. Capacity can also fluctuate depending on a person’s condition and circumstances. 

Questions about mental capacity commonly arise in relation to financial decisions, medical treatment, care arrangements, legal proceedings and disputes involving vulnerability or exploitation. Where concerns arise about a person’s ability to make decisions, mental capacity assessments may be required, and the Court of Protection may become involved to resolve disputes and determine what is in a person’s best interests. Early legal advice can help families, attorneys, deputies and professionals navigate these issues lawfully and effectively. 

What is mental capacity?

What does mental capacity mean? 

Mental capacity is the ability to make a specific decision at the time that decision needs to be made. Under the Mental Capacity Act 2005, a person may lack capacity if an impairment or disturbance in the functioning of their mind or brain affects their ability to make a particular decision independently. 

Assessing mental capacity is not about whether someone makes a decision others agree with. The focus is on whether the person can understand, retain, use and weigh the relevant information needed to make the decision and communicate that decision in some way. 

The Mental Capacity Act 2005 explained 

The Mental Capacity Act 2005 provides the legal framework for assessing mental capacity and making decisions on behalf of people who lack capacity in England and Wales. The legislation applies to a wide range of decisions, including financial matters, medical treatment, care arrangements and legal proceedings. 

The Act also sets out how decisions should be made in a person’s best interests where they are unable to decide independently. In some cases, disputes about capacity or decision-making may need to be resolved by the Court of Protection. 

The five principles of the Mental Capacity Act 

The Mental Capacity Act 2005 is built around five statutory principles which must be considered whenever questions about capacity arise. 

These principles are: 

1. A person must be presumed to have capacity unless it is established otherwise 
2. A person should be given all practicable support before being treated as unable to make a decision 
3. A person is not to be treated as lacking capacity simply because they make an unwise decision 
4. Any act or decision made on behalf of someone lacking capacity must be made in their best interests 
5. Any decision affecting a person who lacks capacity should be the least restrictive option available.

These principles are intended to protect individual autonomy while also safeguarding vulnerable people where intervention becomes necessary. 

Mental capacity is decision-specific and time-specific 

Mental capacity is assessed in relation to the specific decision that needs to be made. Someone may have capacity to make decisions about their daily care but lack capacity to manage complex financial matters or conduct litigation. 

Capacity can also change over time. A person’s ability to make decisions may fluctuate depending on factors such as illness, medication, mental health or the progression of a condition affecting the brain or mind. Because of this, assessments must focus on the individual’s ability to make the particular decision at the relevant time. 

Does making an “unwise” decision mean someone lacks capacity? 

A person should not automatically be considered to lack mental capacity simply because they make a decision others view as risky, unusual or unwise. The Mental Capacity Act recognises that individuals are entitled to make decisions others may disagree with. 

The key legal question is whether the person can understand, retain, use and weigh the relevant information needed to make the decision. A poor decision on its own is not evidence of incapacity. 

Can mental capacity fluctuate? 

Mental capacity can fluctuate, particularly where someone has a condition affecting the functioning of the brain or mind. In practice, this means a person may be able to make certain decisions at some times but not at others. 

Fluctuating capacity can create difficulties in areas such as financial management, medical treatment and care planning. In some situations, decisions may need to be delayed until the person is better able to participate in the decision-making process. 

Mental capacity assessments

Mental capacity assessments are needed where there is a question about whether a person can make a particular decision for themselves. This may arise in relation to property and financial affairs, care decisions, medical treatment, deputyship applications or Court of Protection proceedings. 

An assessment should focus on the specific decision that needs to be made, not on a general view of the person’s ability. Disputes can arise where family members, professionals or deputies disagree about whether the person has capacity, whether enough support has been given, or whether the assessment has properly reflected the person’s circumstances. 

How is mental capacity assessed? 

Mental capacity is assessed by looking at whether the person can make the relevant decision for themselves at the time it needs to be made. The assessment should consider whether the person can understand, retain, use and weigh the relevant information and communicate their decision. 

The assessment should be specific to the individual and the decision in question. A person may be able to make some decisions but not others. 

Holly Miéville-Hawkins, a Partner in our Court of Protection team, interviewed Tim Farmer, an award-winning mental capacity assessor on the topic ‘How to instruct mental capacity assessors?’. The video below is an excerpt from the interview where they discuss the process of assessing someone’s mental capacity.

If you want to watch the full interview, you can sign up for free and we’ll email the interview to you.

The two-stage test for mental capacity 

The Mental Capacity Act 2005 uses a two-stage test:

1. First, the assessor considers whether the person is unable to make the particular decision. This is often referred to as the functional test.
2. Second, the assessor considers whether that inability is because of an impairment of, or disturbance in the functioning of, the person’s mind or brain. This is often referred to as the diagnostic test. 

Who can carry out a mental capacity assessment? 

Many healthcare professionals can carry out mental capacity assessments, provided they apply the Mental Capacity Act 2005 correctly and assess the specific decision in question. 

The most appropriate assessor will depend on the circumstances. In some cases, a professional who knows the person well, such as a social worker, may be better placed than a GP or consultant to provide a detailed assessment. 

What evidence is used in a capacity assessment? 

A capacity assessment may consider the person’s medical background, care records, communication needs, behaviour and the information relevant to the decision being assessed. 

Where a person refuses to take part in a formal assessment, a conclusion about capacity may still be reached using third-party evidence, medical records, care records and evidence about how the person has been behaving. 

Can someone refuse a mental capacity assessment? 

Yes. A person cannot be forced to engage with a mental capacity assessment. 

However, refusal does not necessarily prevent a decision being made about capacity. The first step should usually be to understand why the person is refusing. Concerns may relate to the assessor, the location, the questions being asked or fear about the possible outcome. Adjusting these factors may allow the assessment to proceed. 

Can family members attend a capacity assessment? 

Sometimes, but this depends on the circumstances. A mental capacity assessment can involve sensitive and confidential information, so assessors often prefer to see the person alone. 

There may be good reasons for a family member, friend or carer to attend, particularly where they help with communication, equipment or emotional support. Where someone is present, the assessor should record who was in the room, what role they played and whether there were any concerns about pressure, coercion or undue influence. 

What happens if capacity is disputed? 

Where capacity is disputed, the quality of the assessment and supporting evidence becomes important. The assessor should apply the Mental Capacity Act 2005 principles carefully and focus on the actual decision being made. If disagreement continues, the Court of Protection may need to consider the evidence and decide whether the person has capacity for the relevant decision.

In practice, disputes can become particularly difficult where a vulnerable person does not accept that their capacity is in question and refuses to engage with an assessment. We assisted in a case involving an individual facing enforcement proceedings after failing to meet mortgage payments. There were concerns that they lacked capacity to manage their property and financial affairs and to conduct the court proceedings because they were unable to understand, retain, use or weigh information relating to the mortgage and the enforcement action being taken against them.

The individual refused to accept that they may lack capacity and would not cooperate with a formal capacity assessment. As a result, the court proceedings had to be paused while the issue of capacity was considered. In situations like these, the court may consider medical evidence, witness evidence from those who know the person, and its own observations before determining whether the individual has capacity. If the court concludes that the person lacks capacity, it may become necessary for a deputy or litigation friend to be appointed to make decisions or conduct proceedings on their behalf.

You can read more about how the court approached this issue in our article: What can be done if a vulnerable individual does not accept that they lack capacity and refuse to comply with a capacity assessment?

Can someone regain mental capacity? 

Yes. Capacity can sometimes be regained, particularly where a person’s condition improves with support, treatment or rehabilitation. 

Where someone regains capacity after a deputyship order has been made, an application may be needed to discharge the deputyship order so the person can regain control over their own financial or welfare decisions. 

Court of Protection and mental capacity disputes

Mental capacity disputes can arise where there is disagreement about whether a person can make a specific decision for themselves. These disputes may involve financial obligations, property and affairs, court proceedings, or a refusal to take part in a capacity assessment. 

Where a person’s capacity is in doubt, the focus is on the decision in question. A person may have capacity to manage some day-to-day matters but lack capacity to make more complex financial or legal decisions. 

When does the Court of Protection become involved? 

The Court of Protection may become involved where there is a dispute about whether a person has capacity to make a particular decision or where a decision needs to be made for someone who lacks capacity. 

This can include disputes about property and financial affairs, deputyship issues, or whether a person has capacity to conduct legal proceedings. 

Disputes about mental capacity 

Disputes about mental capacity often turn on whether the person could understand, retain, use and weigh the relevant information at the time the decision needed to be made. 

In financial disputes, for example, there may be a question about whether someone understood the nature and consequences of entering into a debt, loan, mortgage, credit card agreement or care fee contract. The burden of proving lack of capacity usually rests with the person alleging incapacity. 

Deputyship disputes and challenges 

Deputyship issues may arise where a person is said to lack capacity to manage their property and financial affairs. If a person later regains capacity, there may be grounds to apply for a deputyship order to be discharged. 

Capacity should be considered in relation to the specific decisions the deputyship concerns, rather than by making a broad assumption about the person’s abilities. 

Litigation capacity and court proceedings 

Litigation capacity is the level of mental capacity a person needs to participate in court proceedings. If a person does not have litigation capacity, they may need a Litigation Friend to act on their behalf.

The modern test for litigation capacity was established in Masterman-Lister v Brutton & Co [2002], which confirmed that a person must be able to recognise the issues involved, understand and retain relevant information and advice, weigh that information when making decisions and communicate those decisions. In TB v KB and LH [2019], the Court clarified that the focus should be on the person’s ability to conduct the particular proceedings in question rather than their general ability to manage their affairs. The Court also recognised that litigation is a dynamic process requiring ongoing decision-making as a case develops.

Subsequent decisions have refined the test further. In Richardson-Ruhan v Ruhan [2021], the Court confirmed that litigation capacity depends on whether a person would be capable of making the necessary decisions with the benefit of legal advice, whether or not they have actually obtained that advice. In Re P [2021] EWCOP 27 (30 April 2021), the Court emphasised that litigation is often procedurally complex and that the level of capacity required to conduct proceedings is relatively high. More recently, Re Q [2022] EWCOP 6 confirmed that a person may have litigation capacity in relation to court proceedings even if they lack capacity to make the underlying decision that is the subject of the case. Together, these cases demonstrate that litigation capacity is highly fact-specific and must be assessed in the context of the particular proceedings involved.

Challenging a mental capacity assessment 

A capacity assessment may be challenged where there are concerns about how it was carried out, whether the correct decision was assessed, or whether the assessor had enough information. 

If a vulnerable person refuses to take part in a capacity assessment, the first step is to understand why. Concerns may relate to the assessor, the setting, the questions being asked, or fear of the outcome. In some cases, capacity may still need to be considered using available medical records, third-party evidence and information from family or carers. 

Mental capacity and financial decisions

Mental capacity issues often arise where a person is making, or has already made, a financial decision. This may involve managing money, entering into contracts, taking out loans, dealing with debts, making gifts, selling property or protecting an interest in land. 

Financial capacity is decision-specific. A person may be able to manage everyday spending but lack capacity to enter into a mortgage, loan agreement, credit card arrangement, care fee contract or property transaction. 

Capacity to manage finances 

Capacity to manage finances should not be treated as a single, general question. The issue is whether the person can make the particular financial decision in question. 

For example, someone may be able to manage day-to-day purchases but may not be able to understand the nature and consequences of entering into a larger financial obligation, such as a mortgage, loan or credit agreement. 

Capacity to enter into contracts 

The law starts from the presumption that every adult has the mental capacity to enter into a contract. However, that presumption can be challenged where there is evidence that a person lacked the necessary understanding of the transaction they were entering into.

There is no fixed standard of mental capacity that is required for all transactions. The level of understanding required will depend on the nature and complexity of the decision being made. What is important is that the individual has an understanding of the general nature of what they are doing.

The courts have developed a number of important principles in this area. In Imperial Loan Co Ltd v Stone [1892], the court held that a person who lacks mental capacity will still be bound by a contract unless they can show both that they did not understand what they were doing and that the other party knew of their incapacity. If those conditions are met, the contract may be set aside.

More recently, in Dunhill v Burgin [2014], the Supreme Court confirmed that a contract may be avoided where the other party had constructive knowledge of the incapacity, rather than actual knowledge. However, each case turns on its facts. In Josife v Summertrot Holdings Ltd [2014], the High Court considered whether it would have been obvious to the other party that the individual lacked capacity.

Disputes about contractual capacity often arise in relation to significant financial transactions involving loans, property, care fees and other substantial financial commitments. Where capacity is challenged, the court will consider the individual’s understanding at the time the contract was entered into, together with the circumstances of the transaction and the knowledge of the other party.

Mental capacity and loan agreements 

A loan agreement may be challenged if one of the parties lacked mental capacity when the loan was entered into.

As discussed above in relation to contractual capacity, the principles established in Imperial Loan Co Ltd v Stone [1892] apply to loan agreements. In broad terms, a person seeking to challenge a loan on the basis of incapacity will need to demonstrate that they did not understand the nature and effect of the agreement and that the lender knew, or ought to have known, about their incapacity.

Evidence will usually be needed to show that the person did not understand the nature and consequences of the loan at the time it was entered into. Relevant evidence may include medical records, expert reports and witness evidence from people who knew the person at the time.

The burden of proving incapacity generally rests with the person alleging that the individual lacked capacity. This may be the individual themselves, but where they do not have litigation capacity it is often their Litigation Friend who brings the challenge on their behalf. The court will consider the available evidence, the nature of the loan agreement and the circumstances in which it was entered into before deciding whether the agreement should remain enforceable.

Challenging debts based on mental capacity 

A debt may be challenged where there is doubt about whether the person had capacity when they entered into the financial obligation. 

Debts may include secured obligations, such as mortgages or car loans, as well as unsecured debts, such as credit card debt or unpaid care fees. If the person lacked capacity and the creditor should have identified this, there may be scope to challenge the debt. 

Mental capacity to make gifts 

Questions about capacity can arise where someone has made a gift or transferred assets during their lifetime. For a gift to be valid, the individual must have had sufficient mental capacity to make the decision and must have acted free from undue influence.

Capacity to make a gift is judged differently to the capacity for making a will. In Re Beaney [1978], the court confirmed that the standard of capacity expected is relative to the gift being made. This means that the greater the gift, the higher the level of understanding required. The courts have also confirmed that the legal test for capacity to make a gift is not necessarily the test contained in the Mental Capacity Act 2005. In Re Estate of Joyce Smith (deceased) [2014], the court held that the Mental Capacity Act 2005 test did not apply when assessing capacity to make a gift. Similarly, in Walker v Badmin and Others [2014], the court confirmed that the Mental Capacity Act 2005 test did not apply when determining testamentary capacity.

Disputes commonly arise after death when beneficiaries or executors discover that substantial assets were given away during the deceased’s lifetime. In these situations, the court may be asked to determine whether the individual had the necessary capacity to make the gift and, if not, whether the assets should be returned to the estate.

Where there is suspicion surrounding a gift, evidence of both capacity and undue influence may become particularly important. A person with reduced capacity may be more vulnerable to pressure or manipulation, meaning that disputes often involve consideration of both issues.

Selling jointly owned property when capacity is lost 

Where a property is jointly owned, at least two trustees are usually needed to sign the transfer documents on sale. If one owner has lost capacity, they cannot act as trustee and sign the relevant papers. 

If the person has a registered Lasting Power of Attorney for property and financial affairs, their attorney may be able to sign on their behalf. If there is no registered LPA, the continuing trustee may need to apply to the Court of Protection for permission to appoint a replacement trustee. 

Land Registry restrictions and loss of capacity 

A restriction at the Land Registry can help protect the interests of a person who lacks capacity in relation to registered land. 

A restriction is not automatically entered simply because a registered owner lacks capacity. However, restrictions are often recommended and may be required by a Court of Protection order. 

Financial abuse and safeguarding concerns 

Financial capacity issues may arise where there are concerns that a vulnerable person has been taken advantage of or has entered into a transaction they did not understand. 

Concerns may involve loans, contracts, gifts, property transactions or debts that the person cannot manage. In these situations, early legal advice can help establish whether the transaction can be challenged and what evidence is needed. 

Health, welfare and care decisions

Questions about mental capacity often arise in relation to care arrangements, medical treatment and personal welfare decisions. These situations can involve disagreements between family members, healthcare professionals and care providers about whether a person can make decisions independently and what support they may need. 

The Mental Capacity Act 2005 is intended to balance personal autonomy with protection. A person should not lose the right to make decisions simply because they are elderly, vulnerable or make decisions others disagree with. 

Who makes health and welfare decisions? 

Where a person has capacity, they are entitled to make their own decisions about care, treatment and welfare, even if others disagree with those decisions. 

If a person lacks capacity to make a particular decision, decisions may need to be made in their best interests. Depending on the circumstances, this can involve healthcare professionals, local authorities, attorneys acting under a Lasting Power of Attorney, deputies appointed by the Court of Protection or the Court itself. 

Mental capacity and care decisions 

Capacity issues commonly arise when decisions need to be made about where a person should live, the level of care they require or the support they need in daily life. 

Disputes can develop where family members disagree about care arrangements or where there are concerns that the person may not understand the consequences of decisions affecting their safety or welfare. 

Mental capacity and medical treatment 

A person with capacity is entitled to make decisions about their own medical treatment. This includes the right to refuse treatment. 

Where there are concerns about capacity, the question is whether the person can understand, retain, use and weigh the relevant information needed to make the treatment decision at the time it needs to be made. 

Relocating a person who lacks mental capacity

Relocation decisions can raise complex questions where a person lacks capacity to decide where they should live. In some cases, the proposed move may involve relocating to another country to be closer to family, cultural connections or an existing support network.

The Court of Protection considered these issues in Re UR [2021] EWCOP 10, which involved a woman living in a care home in England who had consistently expressed a wish to return to Poland, where her family lived. The Court ultimately concluded that it was in her best interests to return to Poland, recognising the importance of her wishes and feelings, family relationships and connection to her homeland. The decision also highlighted the extensive planning often required before an international move can take place, including consideration of healthcare, social care, travel arrangements, legal issues in the destination country and ongoing support needs.

In reaching its decision, the Court emphasised the importance of careful preparation and identified a range of practical matters that should be considered when relocating a person who lacks capacity. These include obtaining appropriate medical evidence, understanding the care and support available in the destination country, considering financial arrangements and ensuring there is a clear transition plan in place. The case demonstrates that relocation decisions are highly fact-specific and require a careful assessment of both the person’s welfare needs and their wishes and feelings.

Capacity to have contact with others 

The court has confirmed that the test for capacity to have contact with others is decision-specific. The issue is whether the person can understand the nature of the contact and assess the risks involved. 

This may become relevant where there are concerns about vulnerability, exploitation, coercion or unsafe relationships. Restrictions on contact can have a significant impact on a person’s autonomy and personal relationships, so careful assessment is required. 

Voting and personal autonomy 

The Mental Capacity Act 2005 does not contain a specific test for capacity to vote. A person should not automatically be prevented from voting simply because they have dementia, a learning disability or another condition affecting the brain or mind. 

The right to vote is closely connected to personal autonomy and democratic participation. In practice, support may sometimes be needed to help a person understand the voting process. 

Does dementia automatically mean someone lacks capacity? 

No. A diagnosis of dementia does not automatically mean someone lacks mental capacity. 

Mental capacity must always be assessed in relation to the specific decision that needs to be made. A person with dementia may still be able to make many decisions independently, particularly in the earlier stages of the condition. 

Memory problems alone are also not enough to establish incapacity. The key question is whether the person can understand, retain, use and weigh the relevant information needed to make the particular decision. 

Deprivation of liberty and safeguarding

What is deprivation of liberty? 

A deprivation of liberty occurs where a person who lacks capacity is under continuous supervision and control and is not free to leave. Questions about deprivation of liberty commonly arise in hospitals, care homes and supported living arrangements where restrictions are placed on a person’s movements or daily life. 

Whether someone is deprived of their liberty depends on the specific facts of the case. The focus is on the degree of control and restriction being imposed rather than the purpose of the care arrangement. 

Restrictions on liberty and care arrangements 

Restrictions may sometimes be necessary to protect a person who lacks capacity from harm. This can include restrictions on movement, contact with others, access to the community or decisions about where the person lives and receives care.

However, restrictions should always be proportionate and linked to the person’s individual circumstances. In DM v Y City Council, the Court considered the case of a man with Korsakoff’s syndrome who wished to leave his care home and resume drinking alcohol, despite medical evidence that doing so would significantly reduce his life expectancy. Although the Court recognised his wishes and feelings, it ultimately concluded that it was in his best interests to remain in the care home.

The case illustrates that where a person lacks capacity, decisions about care and restrictions on liberty will be made based on their best interests, even where those decisions conflict with their expressed wishes. Care arrangements should not impose unnecessary restrictions simply because a person is elderly, vulnerable or requires support.

Safeguarding vulnerable adults 

Safeguarding concerns can arise where a vulnerable person may be at risk of harm, exploitation, neglect or inappropriate restrictions on their freedom. 

Capacity issues are often central to safeguarding concerns because the question may arise whether the person can make decisions independently about their care, relationships or living arrangements. 

Do Deprivation of Liberty Safeguards apply to 16 year olds?

We spoke to Alex Rook, who is a solicitors and a founding partner at Rook Irwin Sweeney LLP regarding local authorities and NHS funding. In this video excerpt below Alex addresses a crucial question faced by families, carers, and professionals: Do the Deprivation of Liberty Safeguards (DOLs) apply to 16 or 17-year-olds?

Ill-treatment and wilful neglect 

Ill-treatment or wilful neglect of a person who lacks capacity is a criminal offence under the Mental Capacity Act 2005. 

Ill-treatment can include deliberate acts or serious failures in care, while wilful neglect involves knowingly failing to provide appropriate care or support. These concerns may arise in family settings, care environments or professional relationships where a person who lacks capacity depends on others for support. 

The role of the Court of Protection in safeguarding 

The Court of Protection may become involved where there are disputes about restrictions placed on a person who lacks capacity or concerns about whether care arrangements are lawful and proportionate. 

The Court can consider whether restrictions are necessary, whether a person is being deprived of their liberty and whether decisions are being made in the person’s best interests. 

Mental capacity, relationships and family life

Questions about mental capacity can affect some of the most personal aspects of a person’s life, including relationships, marriage, sexual decision-making and parenting. These cases often require a careful balance between respecting an individual’s autonomy and protecting vulnerable people from harm, exploitation or undue influence. 

The Mental Capacity Act 2005 starts from the presumption that a person has capacity. Where concerns arise, the assessment must focus on the specific decision in question rather than assumptions based on age, disability, mental illness or vulnerability.

Capacity to marry or enter a civil partnership 

The legal test for capacity to marry or enter into a civil partnership is relatively straightforward. A person must be able to understand the nature of the marriage contract and the duties and responsibilities that normally arise from marriage. 

The assessment is not concerned with whether the person has chosen a suitable partner or whether family members approve of the relationship. The focus is on whether the individual understands the nature of marriage itself. 

Where there are concerns that a vulnerable person may be entering a marriage they do not understand, legal advice may be needed to consider what protective steps are available. 

Capacity to consent to sexual relationships 

The law recognises that capacity to engage in sexual relationships is a distinct decision-specific issue. In A Local Authority v JB [2020], the Court of Appeal considered what information a vulnerable person needs to understand when deciding whether to engage in sexual relations. This includes understanding the sexual nature of the act, that the other person must have capacity to consent and must consent before and throughout the activity, that the person can say yes or no, and the possible consequences and health risks involved.

Questions about sexual decision-making often arise where there are concerns about vulnerability, exploitation or a person’s ability to recognise and respond to risk within relationships. The Court of Protection can make declarations about whether someone has capacity to consent to sexual relations. Where a vulnerable person has capacity but there are still concerns about exploitation or abuse, other protective steps may need to be considered, including safeguarding referrals, police involvement, injunction proceedings or restrictions on contact in appropriate cases.

We interviewed Sophia Withers, a solicitor working in the Court of Protection team at Martin Searle Solicitors on the topic of ‘Mental capacity to engage in sexual relations‘. The video below is an excerpt from the interview where Sophia is discussing the test for mental capacity for contact with others.

If you’d like to watch the full interview, you can sign up for free and we’ll email you the video.

Vulnerability and exploitation concerns 

Vulnerability and lack of capacity are not the same thing. A person may be vulnerable to influence, manipulation or exploitation while still having mental capacity to make their own decisions. 

This distinction is important because the law seeks to protect vulnerable individuals without unnecessarily restricting their autonomy. Difficult cases often arise where professionals and family members are concerned about a person’s welfare, but the person retains the capacity to make decisions others regard as risky. 

Pregnancy, parenting and fluctuating capacity 

Questions about mental capacity can become particularly complex during pregnancy, especially where a person’s ability to make decisions fluctuates over time. The fact that capacity fluctuates does not mean a person lacks capacity at all times. Assessments must focus on the person’s ability to make the specific decision at the time it needs to be made.

The Court considered this issue in East Lancashire Hospitals NHS Trust v GH [2021], which involved a woman whose severe anxiety and agoraphobia affected her ability to make decisions during labour. Although she had previously been assessed as having capacity and had agreed that she would attend hospital if necessary, her condition later prevented her from properly using and weighing information about urgent obstetric treatment.

The Court concluded that she lacked capacity in relation to that specific decision and authorised treatment that it considered to be in her best interests. The case highlights both the importance of decision-specific assessments and the value of advance care planning, particularly where a person’s wishes and feelings have been clearly expressed at a time when they had capacity.

The Court of Protection’s jurisdiction over children

Although the Court of Protection is primarily associated with adults who lack capacity, it can also have jurisdiction in certain circumstances involving children. This is particularly relevant where a child has substantial assets and is likely to continue lacking capacity to manage their property and affairs once they reach adulthood.

In Irwin Mitchell Trust Corporation Ltd v KS & Ors [2025], the Court considered the case of a child living in India whose property and financial affairs in England and Wales were managed by a Court-appointed deputy following a clinical negligence claim. Despite the child no longer being habitually resident in England and Wales, the Court concluded that it retained jurisdiction. The decision emphasised the importance of continuity, security and ongoing protection where a child is likely to lack capacity to manage their affairs as an adult, particularly where there is no suitable alternative arrangement available in another jurisdiction.

Balancing autonomy and protection 

Many mental capacity cases involving relationships and family life require a balance between respecting personal autonomy and protecting vulnerable individuals from harm. 

The Mental Capacity Act 2005 recognises that people are entitled to make decisions others may disagree with. At the same time, concerns about coercion, exploitation and vulnerability may require careful assessment and, in some cases, intervention to protect the individual concerned. 

Wills, probate and testamentary capacity

Questions about mental capacity frequently arise when a person is making, changing or challenging a will. Concerns may emerge during the will-making process itself or after death, when family members dispute whether the person understood the decisions they were making. 

The law applies specific tests when assessing testamentary capacity. These issues can have significant consequences for estate planning, inheritance disputes and the validity of a will. 

What is testamentary capacity? 

Testamentary capacity is the legal term used to describe a person’s ability to make a valid will. 

The traditional test comes from the case of Banks v Goodfellow. A person making a will must understand the nature of making a will and its effects, understand the extent of their estate, appreciate the claims of those who might expect to benefit, and not be affected by a disorder of the mind that influences the distribution of their estate. 

A person may lack capacity for some decisions while still having testamentary capacity. As with other areas of mental capacity law, the assessment focuses on the specific decision being made. 

The Golden Rule in will-making 

The Golden Rule is a practical guideline used where a will-maker is elderly or seriously ill. First established in Kenward v Adams (1975), it recommends that a medical practitioner assesses and records the person’s capacity at the time the will is made. Although the Golden Rule is not a legal test for capacity and does not replace the requirements for testamentary capacity, following it can help reduce the risk of future disputes.

The importance of the Golden Rule was reaffirmed in Goss-Custard v Templeman [2020]. Despite having originally formulated the Golden Rule, Lord Templeman’s own solicitor did not obtain a medical assessment when preparing his final will, even though he was in his late eighties and experiencing mild dementia and memory loss. The Court ultimately upheld the will and found that Lord Templeman had testamentary capacity. However, the case demonstrated that while failure to follow the Golden Rule does not automatically invalidate a will, it can increase the risk of costly disputes after death and make challenges more difficult to resolve.

Challenging a will for lack of mental capacity 

A will may be challenged where there are concerns that the person lacked testamentary capacity when it was made.

Evidence commonly considered in these disputes includes medical records, witness evidence, solicitor attendance notes and expert opinion. The court will assess the person’s capacity at the time the will was executed rather than making assumptions based solely on a diagnosis or medical condition. It is also important to recognise that the legal test for testamentary capacity differs from the test applied under the Mental Capacity Act 2005 when assessing a person’s ability to manage their financial affairs. However, where a court has already found that a person lacked capacity to manage their finances, this may support a subsequent challenge to their testamentary capacity, as illustrated in Biria v Biria.

Challenges often arise where there are concerns about dementia, cognitive decline or significant changes made to a will shortly before death. In Biria v Biria, a will executed by a 97-year-old man was declared invalid after the court concluded that he lacked the capacity to understand and approve its contents. The case also demonstrates how testamentary capacity disputes are often accompanied by allegations of undue influence, particularly where family members are involved in a vulnerable person’s affairs.

Statutory wills and the Court of Protection 

A statutory will is a will authorised by the Court of Protection on behalf of a person who lacks capacity to make a will themselves. 

Applications for statutory wills are often made where a person has lost capacity and there is no valid will, or where an existing will no longer reflects their circumstances. The Court will consider what is in the person’s best interests when deciding whether a statutory will should be approved. 

Questions of capacity are central to statutory will applications because the Court must first be satisfied that the individual cannot make a valid will independently. 

Mental capacity and estate planning 

Capacity should be considered as early as possible when making or updating a will, particularly where there are concerns about age, illness or cognitive decline. 

Early planning can help reduce the risk of future disputes and provide clearer evidence of capacity at the time decisions are made. Where capacity becomes uncertain, professional advice may be needed to determine the appropriate capacity test and ensure that any estate planning arrangements are legally effective. 

Mental capacity and business owners

Mental capacity issues can create significant difficulties for business owners, directors and companies. A loss of capacity may affect a person’s ability to make decisions, manage business affairs, operate bank accounts or fulfil their duties as a director. 

Many businesses are unprepared for these situations. Without appropriate planning, the loss of capacity by a key decision-maker can create uncertainty, delay important decisions and disrupt the day-to-day operation of the business. 

What happens when a business owner loses capacity? 

The consequences will depend on how the business is structured and whether arrangements have been made in advance. 

A business owner who loses capacity may no longer be able to make decisions about the operation of the business, manage financial affairs or deal with contractual matters. This can create practical difficulties for employees, co-owners and family members who depend on the continued operation of the business. 

Planning ahead can help reduce disruption and ensure that someone has the authority to deal with business affairs if capacity is lost. 

Directors and mental capacity issues 

A company director owes duties to the company and is responsible for making decisions in its best interests. If a director loses mental capacity, questions may arise about how those responsibilities will be carried out and who has authority to act on behalf of the company. 

The position will often depend on the company’s articles of association and any provisions dealing with incapacity. In some circumstances, a director who loses capacity may cease to act as a director in accordance with the company’s governing documents. 

Business continuity planning 

Business continuity planning can help reduce the risks associated with a loss of capacity. This may include reviewing governance arrangements, decision-making procedures and succession plans. 

For many business owners, the issue is not simply who owns the business, but who can continue making operational decisions if they become unable to do so themselves. 

Lasting powers of attorney for business owners 

A Lasting Power of Attorney (LPA) for property and financial affairs may form an important part of business continuity planning. 

Business owners should consider whether an existing LPA is suitable for dealing with business assets and decision-making, or whether specific arrangements are needed to reflect the structure and requirements of the business. 

The effectiveness of an LPA may depend on the nature of the business and the authority required to manage its affairs. 

Shareholder and operational disputes 

Capacity issues can create uncertainty for shareholders, business partners and family members involved in the business. 

Difficulties may arise where there is no clear plan for decision-making following a loss of capacity or where there is disagreement about who should manage the business moving forward. Reviewing existing governance documents and planning arrangements can help reduce the likelihood of future disputes. 

When to seek legal advice about mental capacity

Questions about mental capacity can arise suddenly or develop over time as a person’s circumstances change. Early legal advice can help individuals, families, attorneys, deputies and professionals understand their options, resolve disputes and ensure decisions are made lawfully. 

Specialist advice is often particularly important where there is disagreement about a person’s ability to make decisions, concerns about their welfare or finances, or a need for Court of Protection involvement. 

Disputes about assessments or decision-making 

Disputes frequently arise where family members, professionals or organisations disagree about whether a person has capacity to make a particular decision. 

These disagreements can affect decisions about finances, care arrangements, medical treatment, property transactions and legal proceedings. Obtaining specialist advice at an early stage can help clarify the issues and identify the most appropriate way forward. 

Court of Protection applications 

The Court of Protection can make decisions on behalf of people who lack mental capacity and resolve disputes concerning their welfare and property and financial affairs. 

Applications may be necessary where there is disagreement about capacity, uncertainty about who should make decisions, or a need for the Court to authorise a particular course of action. 

Deputyship and attorney disputes 

Concerns can arise regarding the actions of attorneys appointed under a Lasting Power of Attorney or deputies appointed by the Court of Protection. 

Disputes may involve decision-making, management of finances, questions about capacity or concerns about whether decisions are being made in the person’s best interests. 

Financial exploitation concerns 

A person who lacks capacity may be particularly vulnerable to financial exploitation or undue influence. 

Legal advice may be needed where there are concerns about unusual financial transactions, gifts, property dealings or decisions that appear inconsistent with the person’s wishes, circumstances or previous behaviour. 

Urgent care or medical treatment decisions 

Capacity issues can arise in relation to significant care or treatment decisions, particularly where there is disagreement about what should happen next. 

Where important welfare decisions need to be made and there is uncertainty about capacity or authority to act, specialist advice can help identify the available legal options. 

Complex family disputes involving capacity 

Mental capacity disputes often involve difficult family dynamics. Family members may disagree about care arrangements, financial management, living arrangements or whether a person can continue making decisions independently. 

These situations can be emotionally challenging and may require legal intervention to resolve disputes and protect the person’s interests. 

Speak to a specialist Court of Protection solicitor 

Anthony Gold’s Court of Protection team advises individuals, families, attorneys, deputies and professionals on a wide range of mental capacity issues. This includes capacity assessments, deputyship matters, Court of Protection applications, disputes concerning welfare and property and financial affairs, and applications relating to a person’s ability to make decisions independently. 

Whether you are concerned about a loved one’s capacity, facing a dispute about decision-making, or need advice on Court of Protection proceedings, specialist legal advice can help you understand your position and the options available. 

Frequently asked questions about mental capacity

What is mental capacity? 

Mental capacity is the ability to make a specific decision at the time that decision needs to be made. Under the Mental Capacity Act 2005, the assessment focuses on whether a person can understand, retain, use and weigh relevant information and communicate their decision. 

Who assesses mental capacity? 

Mental capacity can be assessed by a range of professionals, depending on the decision being considered. This may include healthcare professionals, social workers or specialist assessors. The most appropriate assessor will depend on the circumstances and the nature of the decision. 

Can someone refuse a mental capacity assessment? 

Yes. A person cannot be forced to participate in a mental capacity assessment. However, refusal does not necessarily prevent a decision being made about capacity. In some cases, conclusions may need to be drawn from medical records, care records and other available evidence. 

Does dementia mean someone lacks mental capacity? 

No. A diagnosis of dementia does not automatically mean someone lacks mental capacity. Capacity must always be assessed in relation to the specific decision that needs to be made at the relevant time. 

Can mental capacity fluctuate? 

Yes. Mental capacity can fluctuate, particularly where a person has a condition affecting the functioning of the brain or mind. A person may be able to make certain decisions at one time but struggle to make the same decisions at another. 

What happens if someone lacks mental capacity? 

If a person lacks capacity to make a particular decision, decisions may need to be made on their behalf in accordance with the Mental Capacity Act 2005. Depending on the circumstances, this may involve attorneys, deputies, healthcare professionals or the Court of Protection. 

Who makes decisions for someone who lacks capacity? 

The answer depends on the type of decision involved. Decisions may be made by attorneys acting under a Lasting Power of Attorney, deputies appointed by the Court of Protection, healthcare professionals, local authorities or, in some cases, the Court of Protection itself. 

What is a best interests decision? 

Where a person lacks capacity to make a particular decision, any decision made on their behalf must be made in their best interests. The Mental Capacity Act 2005 requires decision-makers to consider the person’s wishes, feelings, values and circumstances when reaching a decision. 

Can mental capacity assessments be challenged? 

Yes. Concerns may arise about whether the correct legal test was applied, whether sufficient evidence was considered or whether the assessment properly addressed the decision in question. In some cases, disputes about capacity may ultimately need to be resolved by the Court of Protection. 

What is the Court of Protection? 

The Court of Protection is a specialist court that deals with decisions affecting people who may lack mental capacity. It can determine questions about capacity, appoint deputies and resolve disputes concerning welfare and property and financial affairs. 

Can someone regain mental capacity? 

Yes. In some situations, a person’s condition may improve, and they may regain the ability to make decisions independently. Where a deputyship order is in place, an application may be required to bring the arrangement to an end if capacity has been regained. 

Can a will be challenged for lack of capacity? 

Yes. A will may be challenged if there are concerns that the person making it lacked testamentary capacity at the time it was signed. The court will consider the evidence available, including medical records, witness evidence and any professional assessments carried out at the time.