Zoe Hodge, Senior Associate, is an experienced private client solicitor with a particular interest in Court of Protection matters. In the next article in our series, Zoe looks at mental capacity and things to look out for when it comes to making important decisions.
Mental capacity is complex. It is recognised that mental capacity can fluctuate from time to time and may also be dependent on the decision being made. For example, a person may have capacity to decide to pay an electricity bill but may not have sufficient capacity to be able to deal with a million-pound investment portfolio. A person may also have mental capacity to make a decision in the morning but be unable to make the same decision in the afternoon. Therefore, the ability to make a decision is both time and issue specific.
The Mental Capacity Act 2005 sets out the test of capacity in sections 1,2 and 3 and can be summarised as follows:
The donor (who is the person making the lasting powers of attorney and giving their authority for their chosen attorneys to make decisions or give instructions regarding their assets and finances, or health and welfare) should:
- Be assumed to have capacity unless it is established otherwise.
- Be assisted in making the decision in question.
- Not be treated as lacking in capacity if they make an unwise decision.
- Not be treated as lacking in capacity merely because they have a particular diagnosis, they are elderly or because of their condition or behaviour.
A donor will be considered as lacking in capacity if they cannot understand, retain, use or weigh information relevant to the decision being made, or is unable to communicate their decision by any reliable means because they have an impairment or disturbance in their brain or mind.
Your opinion as to whether the donor lacks capacity to make the specific decision at hand must be made on the balance of probabilities i.e. it is more likely than not that the donor has capacity.
Remember that incapacity may be temporary. Can the decision wait to enable you to repeat the process of assessing capacity on a different day or at a different time? If so, you should delay making the decision as long as it is in the donor’s best interests to do so. If you are in any doubt, you may want to seek our advice before proceeding. It might be prudent to obtain a mental capacity report from an expert such as an independent visitor or social worker who specialises in mental capacity assessments.
In conclusion, assessing a donor’s mental capacity is a nuanced and critical process that requires careful consideration of various factors. It is essential to remember that capacity can fluctuate and is specific to the decision at hand. By following the guidelines set out in the Mental Capacity Act 2005 and seeking professional advice when in doubt, you can ensure that decisions are made in the best interests of the donor.
This is only intended to be a summary and not specific legal advice. Should you require more information or would like to speak to us, please contact Zoe Hodge, or another member of the private client team.
Note: the costs of seeking advice are likely to be recoverable from the donor’s estate.
View the other articles in this series on our website here: Insights & Opinion – Greene & Greene
