Mental capacity is the ability to fully understand the consequences of making a decision. It’s vital to have mental capacity when creating a lasting power of attorney, or when writing your will amongst other things. If you don’t have mental capacity, your documents won’t be accepted.

The Mental Capacity Act (MCA) came into full effect on 1 October 2007 in England and Wales. This sets out what happens when people are unable to make decisions, which can be because they are too young, old or unwell. All professionals must comply with the Mental Capacity Act Code when they support anyone who lacks capacity.

The Mental Capacity Act has five principles:

  1. All adults have the right to make decisions for themselves unless it is shown that they are unable to do so. This means people can’t assume you are unable to make a decision for yourself just because you have a particular medical condition or disability, or because of your age or appearance.
  2. People should be supported to make their own decisions as much as possible before anyone concludes that they can’t. This support can be given through words, pictures or signs, or by providing information in different formats. In some cases an independent advocate can also be of help.
  3. Everyone has the right to make what may appear to be an unwise or strange decision, and this doesn’t mean that decision should be disregarded or not taken seriously.
  4. Any decision taken on behalf of someone who lacks capacity must be done so in their best interests. Wherever possible that person should still be involved in making the decision. The exception to this is when a relevant and valid decision to refuse medical treatment has been taken in advance.
  5. When making a decision on someone’s behalf, there should be as little interference with the freedom and rights of that person as possible, and they should not be restricted unnecessarily.

What is Mental capacity?

Mental capacity is the ability to make a decision. Usually a decision that affects daily life, for example, what to put on in the morning or more significant decisions, like, whether to undergo an operation or make a will. It is important a person’s ability to carry out the processes involved in making the decision and not the outcome of the decision. A lack of capacity cannot be established merely by reference to:

  • Someone’s age or what they look like, for example, scars or muscle spasms and other aspects of appearance such as skin colour or religious dress.
  • A condition of, or an aspect of behaviour, which might lead others to make unjustified assumptions about capacity which includes physical disabilities, learning difficulties, age-related illness, extrovert or withdrawn behaviour.

The legal definition states that someone who lacks capacity can’t do one or more of the following things:

  • Understand information given to them
  • Retain that information long enough to be able to make a decision
  • Weigh up the information available to make a decision
  • Communicate their decision by any possible means, such as talking, using sign language or even simple muscle movements like blinking an eye or squeezing a hand

One of our lasting powers of Attorney Solicitors supporting a client with a mental capacity query

Why use our Powers of Attorney Solicitors?

It’s essential that you receive the correct guidance and support from a trusted solicitor, during a powers of attorney case, to ensure you are properly protected. If you have any questions regarding mental capacity, how mental capacity is assessed or the kind of evidence that is required please let us help you today. For more information visit our Powers of Attorney page or contact our solicitors in Brighton directly on 01273 726951.

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