Expert legal guidance on mental capacity matters

Mental capacity can be affected by various factors, including:

• Age-related illnesses such as dementia or Alzheimer’s disease.
• Learning disabilities that impact comprehension or communication.
• Brain injuries resulting from accidents or medical conditions.
• Mental health disorders that impair judgement or decision-making.
• Temporary conditions, such as the effects of medication, severe stress, or substance use.

It’s essential to note that mental capacity is decision-specific. This means that a person may be capable of making some decisions but not others. For instance, someone might manage their day-to-day expenses but lack the capacity to make complex financial or legal arrangements.

Under the Mental Capacity Act 2005, everyone is presumed to have capacity unless there is evidence to suggest otherwise. This principle ensures that individuals are not unfairly treated or excluded from decision-making simply because they have a diagnosis or condition that might affect their mental capacity.

When there are concerns about someone’s ability to make decisions, a formal mental capacity assessment may be required. This assessment must focus on the specific decision in question and take into account the individual’s circumstances, condition, and level of understanding.

Anthony Gold Solicitors work closely with clients, families, and healthcare professionals to navigate these assessments, ensuring they are fair, thorough, and conducted in line with the law.

Some conditions, such as mental health disorders, brain injuries, or neurological illnesses, may cause a person’s capacity to fluctuate. For example:

• A person might have the capacity to make decisions about their daily care but struggle with managing complex financial matters.
• Someone recovering from a head injury might regain the ability to make certain decisions as their condition improves.

Recognising this variability is crucial, as it avoids unnecessary restrictions on an individual’s rights while ensuring they receive support when they need it.

Mental capacity is always assessed with a particular decision in mind. For example:

• A person may lack capacity to create a legal Lasting Power of Attorney (LPA) but still have the ability to decide on their living arrangements.
• Similarly, they might be unable to manage large sums of money but capable of handling small, day-to-day expenses.

This decision-specific approach ensures assessments are fair and tailored, recognising an individual’s strengths and limitations.

When mental capacity fluctuates or is limited to specific decisions, it can create legal and emotional challenges for individuals and their families. In such cases:

• Clear guidance is needed to identify when support or intervention is necessary.
• Legal professionals must ensure that decisions made on behalf of the individual are in their best interests and respect their rights as much as possible.

At Anthony Gold Solicitors, we work to support clients facing fluctuating or decision-specific capacity issues. Whether you need advice on navigating these complexities or representation in legal matters such as capacity disputes or Court of Protection applications, our team provides expert, empathetic assistance.

The MCA is built on five guiding principles:

1. Presumption of capacity: Every adult is presumed to have capacity unless proven otherwise. A diagnosis or condition does not automatically mean someone lacks capacity.
2. Ability to make unwise decisions: Individuals are entitled to make decisions others may view as unwise or unconventional, provided they understand the consequences.
3. Support to make decisions: Every effort must be made to provide the individual with the information, tools, and time needed to make their own decisions.
4. Best interests: If a person lacks capacity, any decisions made on their behalf must prioritise their best interests, considering their wishes, feelings, and cultural or personal values.
5. Least restrictive option: Any intervention must aim to limit the person’s rights and freedom as little as possible while achieving the desired outcome.

The MCA outlines a structured process for determining whether someone has capacity to make a specific decision:

Stage 1: Diagnostic stage:

• Is there an impairment or disturbance in the functioning of the person’s mind or brain (e.g., due to dementia, a learning disability, or mental illness)?
• If no impairment is identified, the person cannot be found to lack capacity.

Stage 2: Functional stage:

If there is an impairment, can the individual:

• Understand the relevant information about the decision?
• Retain the information long enough to make a decision?
• Weigh up the information to consider options and consequences?
• Communicate their decision in any way?

If the individual cannot meet these criteria, they may be deemed to lack capacity for that specific decision.

The MCA doesn’t just establish how to assess capacity; it also aims to empower individuals to make decisions wherever possible. It ensures they receive the support they need, such as:

• Simplified explanations or visual aids for understanding information.
• Extra time to consider their options.
• Assistance from interpreters or specialists where communication barriers exist.

At Anthony Gold Solicitors, we ensure the principles of the MCA guide every step of our work. We’re here to provide practical and compassionate legal guidance, whether you need advice on:

• Understanding the two-stage test,
• Preparing for a capacity assessment,
• Supporting a loved one with fluctuating or limited capacity,

Capacity assessments play a vital role in safeguarding individuals and their interests. They:

• Confirm whether a person can make a particular decision.
• Ensure that appropriate support is provided if capacity is lacking.
• Help avoid disputes or misunderstandings among family members, carers, and professionals.

We work closely with clients and their families to navigate this process, offering clear guidance and practical assistance.

Capacity assessments must follow the two-stage test outlined in the Mental Capacity Act:

• Is there an impairment or disturbance in the functioning of the mind or brain?

This could include conditions such as dementia, brain injury, or a mental health disorder.

• Does this impairment mean the individual cannot make the decision in question?

The assessor will evaluate the person’s ability to:

• Understand the relevant information.
• Retain the information long enough to decide.
• Weigh up the information to consider the pros and cons.
• Communicate their decision, whether verbally, in writing, or using non-verbal methods.

A capacity assessment must be carried out by someone qualified and experienced in dealing with mental capacity issues. This could be a medical professional, such as a GP or psychiatrist, or a legal expert, depending on the type of decision being assessed.

Our solicitors at Anthony Gold have extensive experience preparing instructions for capacity assessments. We ensure that assessors have all the necessary details, providing a thorough and fair evaluation tailored to the specific decision at hand.

If a person is deemed to lack capacity, any decision must be made on their behalf by:

• An Attorney (appointed under a Lasting Power of Attorney).
• A Deputy (appointed by the Court of Protection).
• Another authorised person, always acting in the individual’s best interests.

If disputes arise, we can help resolve them through negotiation or, where necessary, represent you in the Court of Protection.

Our team of experienced solicitors provides comprehensive support during the assessment process. We can:

• Prepare detailed instructions for the assessor to ensure clarity and fairness.
• Help you understand the assessment process and its implications.
• Advise on next steps if capacity is found to be lacking.

Whether you are arranging an assessment for a loved one or addressing a complex legal matter where capacity is in question, Anthony Gold Solicitors offer the expertise and sensitivity you need.

When capacity is lacking, decisions may be made by:

• An Attorney: Appointed under a Lasting Power of Attorney (LPA) to handle financial, property, or welfare decisions.
• A Deputy: Appointed by the Court of Protection to manage ongoing affairs when no LPA is in place.
• Other Professionals or Family Members: For specific decisions that do not require formal legal appointments.

These decision-makers are legally bound to act in the individual’s best interests and must consider their past and present wishes, feelings, beliefs, and values wherever possible.

The Mental Capacity Act requires all decisions made on behalf of someone lacking capacity to prioritise their best interests. This involves:

1. Considering all relevant circumstances, including the person’s known wishes and feelings.
2. Involving the individual as much as possible in the decision-making process.
3. Avoiding assumptions based solely on their age, appearance, or condition.
4. Considering the least restrictive option to maximise the person’s rights and freedoms.

For example:

• Choosing a care arrangement that aligns with the individual’s cultural or personal preferences.
• Making financial decisions that secure their long-term stability without unnecessary risk.

Sometimes, disagreements arise about what constitutes a “best interest” decision, whether between family members, carers, or professionals. Common disputes include:

• Decisions about medical treatment or care arrangements.
• Conflicts over the management of finances or property.
• Disagreements about the appointment of a Deputy or Attorney.

Anthony Gold Solicitors are experienced in resolving such disputes through mediation, negotiation, or, when necessary, representation in the Court of Protection.

When capacity is lacking, decision-making can be both legally complex and emotionally challenging. Our team can:

• Advise Attorneys and Deputies on their legal responsibilities.
• Help families and carers navigate disputes over best interest decisions.
• Represent you in applications to the Court of Protection for decisions or appointments.
• Offer practical support during highly sensitive situations, ensuring the individual’s needs and rights are at the forefront.

Whether you’re facing a one-off decision or managing ongoing responsibilities, Anthony Gold Solicitors are here to guide you with expert advice and compassionate care.

Anthony Gold Solicitors have earned rankings in Legal 500 and Chambers and Partners for excellence in Court of Protection cases. Our team is praised for their diligence, attention to detail, and commitment to achieving the best outcomes for clients. Highlights of our expertise include:

• Handling complex welfare and financial-related litigation.
• Supporting high-profile personal injury and clinical negligence cases involving individuals who lack capacity.
• Managing international cases involving the protection of vulnerable individuals.

Key members of our team, such as David Wedgwood, Alexandra Knipe, and Emma Tante, bring years of experience and a proven track record in resolving the most challenging cases. From receiving referrals from the Official Solicitor to advising local authorities, we are trusted by professionals and families alike.