Your mental capacity is vital to whether you can make decisions or not.  It will make the difference, for example, between whether you can even appoint your own Attorney. If you are lacking mental capacity and haven’t appointed an attorney, it will be too late as a court would have to appoint an attorney instead, or a Deputy, as it is known. This article looks at lacking mental capacity and the Mental Capacity Assessment.

At some point, it will be necessary to establish whether a person has mental capacity. It may be that an attorney has been appointed but that the Donor has specified that you can only act on their behalf if they have lost capacity. In such a case, you will need to have the Donor assessed to see whether they are lacking mental capacity. This article discusses getting a Mental Capacity Assessment for lacking mental capacity – for general guidance see General guidance on mental capacity.

Why might someone lack mental capacity?

  • dementia / Alzheimer’s
  • a stroke
  • a severe learning disability
  • a mental health illness
  • a brain injury
  • unconsciousness caused by an anaesthetic or sudden accident

Loss of mental capacity may be permanent and irreversible but it may also be temporary – so, even more reason to think about appointing an Attorney before it is too late.

A word of caution though: a diagnosis of dementia doesn’t necessarily mean that someone is lacking in mental capacity. It is important to get a proper assessment before you can treat someone as having lost capacity.

Mental capacity assessments

Firstly, it is important to understand that a mental capacity assessment has to be quite specific. There are different types of decision-making, some simple, some complex. Asking whether someone is lacking mental capacity for making complex financial decisions is very different, for example, to asking whether someone can decide what they have for lunch.

So, when asking for a capacity assessment, you must specify what it is needed for. It might be to have an assessment for a Lasting Power of Attorney for Finance and Property (LPA), or to consider medical treatment under a Health and Wellbeing LPA. Or it might be to assess whether the Donor has the capacity to revoke a Lasting Power of Attorney.

Who carries out the assessment?

The obvious choice is the Donor’s own doctor. The doctor or a doctor from the person’s own surgery will have a history profile of the Donor so should be in a better position to provide an assessment. Increasingly though, doctors are reluctant to carry out a capacity test because of the liability it carries. Another choice might be the Donor’s social worker, if they have one.

The assumption must be that the individual does have capacity until proven otherwise.

A third option might be to have a private company carry out an assessment. This, though, may not carry as much weight as an assessment from someone who knows the Donor, especially if it is just a test and no further evidence s gathered.

There is also a Deputy or officer appointed by the Court of Protection who may carry out the assessment.

If it relates to a major decision, to sell a property for example, you can get an assessment from a relevant professional such as a solicitor.

The triggers for an assessment

The triggers might be that the individual has made repeated unwise decisions or actions that appear irrational, out of character, and which could cause them harm. You must exercise caution, though: a decision that is strange or that you don’t agree with does not mean that the person has lost capacity.

The two-stage test

There is a two-stage test under the Mental Capacity Act 2005, to establish whether an individual has the capacity to make a particular decision at a specific time.

Stage 1: Does the person have an impairment of, or disturbance in, the functioning of the mind or brain?  The assumption must be that the individual does have capacity until proven otherwise.

Stage 2: If the first test is satisfied, is the impairment or disturbance sufficient to prove that the person is unable to make the specific decision when they need to? Wherever practical, the individual should, if possible, be given the time and the encouragement to make their own decision.

Five Principles & the COP

There are five principles under the Mental Capacity Act (MCA) that the person who carries out the assessment must apply. These people also have to consider the Code of Practice under the MCA.

Lacking mental capacity

What happens if the assessment shows that the person is lacking mental capacity? Firstly, you will need to show a full assessment has been carried out. There may be a subsequent application to the Court of Protection to question the validity of the assessment, so it is important to show that capacity has been properly assessed.


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