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Mental capacity refers to a person’s ability to make specific decisions or to take actions that influence their life. Capacity is date, time and decision specific. A person may, therefore, have the capacity to decide what to eat for dinner, but not to decide where to live to receive care, or how to invest their money.

In legal terms, the fundamental principle is that any person must be assumed to have the capacity to make a decision unless it is established otherwise. To determine a lack of capacity requires a formal assessment.

At Lester Aldridge, our solicitors have experience of assessing capacity with regard to a particular transaction and supporting families and their loved ones in respect of all mental capacity act matters.

Mental Capacity Act

The Mental Capacity Act 2005 is underpinned by the following guiding principles:

  1. A person must be assumed to have capacity unless it is established that he or she lacks capacity.
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  4. An act done, or decision made, for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
  5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

How can we help?

Our solicitors can provide:

  • Advice to you and your family on the merits of making Property and Financial Affairs or Health and Welfare Lasting Powers of Attorney;
  • Advice to you in your capacity as a Property and Financial Affairs or Health and Welfare Attorney regarding making a decision in the donor’s best interests;
  • Discuss with you whether an application to the Court of Protection for deputyship is appropriate for a friend or loved one who appears to be unable to make decisions for themselves due to impaired capacity.

We also have a Community Care team who can provide you with detailed advice & support on all aspects of mental capacity law relating to health & welfare decision making.

Frequently Asked Questions

A person must be supported and encouraged to make their own decisions where possible.

Steps to be considered include:

  • Does the person have all the relevant information needed to make a decision?
  • If they are making a decision that involves choosing between alternatives, do they have information on all the different options?
  • Would the person have a better understanding if information was explained or presented in another way? Different methods of communication should be explored, such as the use of visual aids or the assistance of a Speech and Language Therapist.
  • Are there times of the day when the person’s understanding is better?
  • Are there locations where they may feel more at ease?
  • Can the decision be put off until the circumstances are different and the person concerned may be able to make the decision?
  • Can anyone else help the person to make choices or express a view (such as a family member, carer or advocate)?

 

If, after all practicable steps to support a person to make a decision have been taken, there is a concern that a person lacks the capacity to make a specific decision, their capacity must be assessed. The test is as follows:

A person is deemed to ‘lack capacity’ in relation to the decision in question if he or she is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

It must be possible to explain how the impairment or disturbance has caused the inability to make a decision. In other words, there must be a causal link.

For complex decisions, such as where a person should live and receive care, all the relevant evidence and available options should be discussed at a round table meeting or ‘best interests meeting’. Collaborative discussion should result in a reasoned analysis of the advantages and disadvantages, and risks associated with each available option, to facilitate a best interests decision. This is known as the ‘balance sheet’ approach.

All of the possible options should be considered, including those that are less intrusive on a person’s freedom. This does not mean however that the least restrictive option must always be taken.


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