Mental Capacity And Incapacity
Having sufficient mental capacity is the cornerstone of many of our daily interactions, transactions and decisions: selling a house, entering a contract, making a Will, ordering a gift etc. However, there is no unified test for mental capacity and this depends on the decision or transaction which needs to be made.
There are currently different legal tests to determine capacity, and the appropriate test depends on the decision which needs to be made. For example, the test for capacity to make a Will is laid down in the common law case of Banks v Goodfellow, whereas there is a more general test for capacity set out in the Mental Capacity Act 2005.
In any case, mental capacity is always time and decisions specific. This means that someone with a condition or illness which has an effect on the functioning of the brain (such as Dementia), could still have sufficient mental capacity to make a particular decision. It can therefore be the case that a person can make a decision about one matter and not about another.
Acting as Attorney or Deputy
If you are appointed to act for a person as Attorney or Deputy, you must keep in mind the Mental Capacity Act Principles and the wishes of the person you act for. The person’s own wishes and feelings should be obtained for consideration before a decision is made.
The core principles of the Mental Capacity Act are:
- Presumption of Capacity – The starting point is to assume the person has the capacity to make their own decisions;
- Support to make decisions – To help the person to make their own decisions as far as possible using all practicable steps;
- Unwise decisions – All people are free to make their own unwise decisions and this does not automatically mean that they do not have the capacity to make the decision in question;
- Best interests – When making a decision on behalf of another, the decision must be made in their best interests;
- Least restrictive option – When making decisions on behalf of another, you should consider the option which is the least restrictive to that person’s rights and freedom.
It is also important to protect both your interests and those of the person you act for by keeping a record of important decisions which are being made and how much involvement your loved one has had in those decisions.
The Mental Capacity Act sets out that the practical test for capacity should look at whether a person can a) Understand the decision which needs to be made and the information relevant to that decision; b) Retain the relevant information for long enough to make the decision; c) Use and weigh up the information to make the decision; and d) Communicate their decision.
Talk to Tollers
If you suspect that a loved one may be having difficulties with any of the steps detailed above, it may be worth having an early discussion with them about protecting their affairs in case of capacity being lost. Seek advice and support early on to ensure you have the best chance of protecting matters for yourself and your family and speak to our Elderly and Vulnerable Client team.