Mental capacity refers to a person’s ability to be able to make decisions for themselves. It involves being able to understand information about a decision, think about it carefully and communicate the decision. So, this is a general guide to mental capacity for donors and attorneys.
Losing mental capacity
People might lose mental capacity temporarily or permanently due to conditions like illness, injury, or the effects of medication. For example, imagine you’re deciding what to eat for lunch. To have mental capacity for that choice, you need to:
1. Understand what options are available (e.g., sandwiches or soup).
2. Remember the options long enough to decide.
3. Weigh the pros and cons (e.g., you like sandwiches, but soup is healthier).
4. Tell someone your choice (e.g., speaking, pointing, or writing).
Mental capacity can vary. Someone might be able to decide what to eat but not how to manage their finances. It also depends on the moment, you might have capacity for a decision one day but not another if you’re unwell or confused.
Mental Capacity
A donor has to have mental capacity to be able to appoint an attorney. If the donor has lost capacity, someone will need to go to the Court of Protection to be appointed as a Court-appointed deputy. It is essential for the donor to have ‘mental capacity’. If the mental capacity is in any doubt, the donor will need to have a mental capacity assessment.
Capacity is a complicated area and differs depending on what type of decision is being made. There is a difference between making serious financial decisions and making everyday decisions about what you are going to eat, for example.
Checking mental capacity
Mental capacity can sometimes be permanent and sometimes temporary and something that someone can recover from. So, it is necessary to check that a person has mental capacity to make a decision at the time that the decision needs to be made. So, it is time-specific and decision-specific.
Firstly you need to use the two-stage test to establish whether there is a mental capacity issue which needs an assessment.
The Two-Stage Test
- Is there an impairment or disturbance in the functioning of the person’s mind or brain?
- This could result from conditions like dementia, mental illness, brain injury, or the effects of medication or substance misuse.
- Does the impairment or disturbance mean the person is unable to make a specific decision when required?
- A person is unable to make a decision if they cannot do one or more of the following:
- Understand the information relevant to the decision.
- Retain that information long enough to make the decision.
- Use or weigh the information as part of the decision-making process.
- Communicate the decision (by any means, including non-verbal communication).
- A person is unable to make a decision if they cannot do one or more of the following:
You need to get a Mental Capacity Assessment (MCA) from either the donor’s doctor, social services or an independent body. If there is uncertainty about capacity or best interests, attorneys can apply to the Court of Protection for guidance or a decision.
Mental Capacity Assessments
A mental capacity assessment will need to be carried out for specific decisions. For serious financial decisions you will need to have a full assessment done. This can be done by Social Services if you have contact with them or by and independent company. It is better to have the donor assessed by a professional who knows them but, if this is not possible, then you need to find an alternative.
If the MCA is likely to be contentious, make sure that you have a full assessment done by an approved authority. Doctors these days usually decline to carry out an assessment for finances, although they may do for health and welfare.
Mental Capacity Act and Code of Practice
Mental Capacity is governed by the Mental Capacity Act 2005. There is also a Mental Capacity Code of Practice which gives guidance for decisions made under the Act. The Code of Practice tells you what you must do when you act or make decisions on behalf of people who can’t act or make those decisions for themselves. The Code has statutory force, which means that certain categories of people have a legal duty to abide by it. Thi is when working with or caring for adults who may lack capacity. An attorney should consider the Code when making decisions regarding the donor’s capacity.
Mental Capacity Act: 5 key principles
There are five key principles under the Mental Capacity Act 2005 that must be adhered to:
- A person must be assumed to have capacity unless it is established that they lack capacity
- A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success
- A person is not to be treated as unable to make a decision merely because they make an unwise decision
- An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests
- Can the decision effectively be achieved in a way that is less restrictive of the person’s rights and freedom of action? This must be done before the act is done, or the decision is made.
Strange decisions
Basically, the attorney must assume that the donor has capacity, unless it can be established that they lack capacity. Even if the person makes a strange decision, this does not necessarily mean that they lack capacity. It is important to take all possible steps to try and help people make a decision for themselves. If the decision does not need to be made urgently, try and wait and help the person make the decision at another time. See How to Act as an Attorney
Making decisions
When a donor loses capacity, the attorney must begin making decisions on their behalf. They should be using a structured approach that is consistent with the Mental Capacity Act 2005. You will have to make what is called a ‘best interests’ decision and it is recommended that you use the ‘balance sheet’ approach. For further information, see our article: How to make decisions under a Lasting Power of Attorney.
Types of Lasting Power of Attorney
There are two types of Lasting Power of Attorney:
A Lasting Power of Attorney for Finance and Property can be given to an attorney and they can act for you whether you have capacity or not. This is unless you have specified that they can only act for you when you have lost capacity. If the court has appointed a deputy, the deputy will look after the donor’s finances under this LPA.
The Lasting Power of Attorney document specifically states that on page 6 – see below:
If the donor ticks the second box that the attorney can only act when the donor has lost capacity it can make the attorney’s job more difficult. So, this option should be used with caution.
The donor will need to have their capacity assessed in order for the attorney to act. The attorney will need to show both the power of attorney and the letter or assessment showing a lack of capacity.
A Lasting Power of Attorney the Health and Wellbeing can be given to an attorney but, the donor has to lack capacity for the attorney to be able to act. A court-appointed deputy does not ordinarily act under this Lasting Power of Attorney (LPA).
More guidance on mental capacity:
