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.

Mental Capacity

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:

  1. Presumption of Capacity – The starting point is to assume the person has the capacity to make their own decisions;
  2. Support to make decisions – To help the person to make their own decisions as far as possible using all practicable steps;
  3. 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;
  4. Best interests – When making a decision on behalf of another, the decision must be made in their best interests;
  5. 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.

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Our Mental Capacity And Incapacity Experts

Tonina Ashby
Head of Elderly and Vulnerable Client Unit
Tonina specialises in Court of Protection and Elderly Client affairs...
Sharon Brown
Senior Associate Solicitor
Sharon offers free monthly advice clinics at Age Concern Stevenage and Garden House Hospice...
Leigh Chia
Paralegal
Leigh is a paralegal and supports the EVCU with clients who require care by assisting to create Lasting Powers of Attorney, ensuring that their funding has been correctly assessed...
Emma Wesley
EVCU Manager
Emma has been a member of our specialist Elderly and Vulnerable Client Unit (“EVCU”) since it was set up in early 2013...
Tonina Ashby
Head of Elderly and Vulnerable Client Unit
Sharon Brown
Senior Associate Solicitor
Leigh Chia
Paralegal
Emma Wesley
EVCU Manager
Meet the Full Elderly And Vulnerable Clients Team

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