The term Mental Capacity is widely used in the Court of Protection and is determinative of how we progress matters on behalf of our clients, to ensure that their wishes are honoured, and their property and affairs adequately safeguarded.
Mental Capacity is your ability to understand information and make decisions about your life, including your ability to communicate those decisions. If you are deemed to lack of capacity it might be permanent or short term and may arise as a result of an age-related illnesses, a learning disability or brain injury.
Your capacity may fluctuate and depend on the type of decision that needs to be made. For example, you might lack capacity to make decisions relating to your property and affairs but have capacity in respect of your testamentary wishes. You are therefore assumed to have capacity until deemed otherwise, and the Mental Capacity Act 2005 (MCA) is designed to protect and empower people who may lack mental capacity.
When dealing with complex issues surrounding capacity, an assessment should be undertaken to determine whether an individual has the requisite capacity to deal with a specific matter. The assessment should be undertaken by a professional who has experience in dealing with capacity assessments. Our team of highly experienced solicitors can support with preparing detailed instructions for capacity assessments on a wide variety of property and affairs, and welfare matters.
The MCA sets out a 2-stage test which will help the assessor formulate a view as to capacity:
- Can you understand the information about the particular decision?
- Can you remember the information for long enough to make a decision?
- Can you weigh up the information to reach a decision?
- Can you communicate the decision in any way at all? For example, talking, using sign language or hand signals? Wherever possible, you should be supported to make the decision.
If you are deemed to lack capacity, the decision will need to be made by someone on your behalf, such as by your Attorney or Deputy. Any decisions made on your behalf must be made in your best interests. Where Mental Capacity is in question, we can help guide and support clients and their families during what is often a highly emotional time, supporting best interest outcomes, in a collaborative way.