28 November 2017

Losing it?

by Miranda Marshall, Director, Hayes + Storr

Assessing mental capacity is science. It is time-specific and decision-specific. In law  “a person lacks mental capacity in relation to a matter if, at the material time, he 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” (Mental Capacity Act 2005 “The Act”).

Loss of mental capacity to make a decision can be partial, temporary or change over time.

There are specific, defined legal tests for the capacity to do the following: to make a Will, to make a gift, to litigate, to enter into a contract or a marriage.

In most other matters it is the principles set out in The Act which must be used to determine capacity. Presumption of capacity is the first principle of The Act: a person is assumed to have capacity unless proved otherwise. The person claiming that another lacks capacity should be able to provide proof of that incapacity and the test is on the ‘balance of probabilities’ (the standard civil, as opposed to criminal, proof).

A person’s age, appearance, condition or behaviour does not by itself establish a lack of mental capacity.

There are two stages to assessment of mental capacity: diagnostic and functional. Examples of an impairment or disturbance which can be diagnosed include dementia, significant learning disabilities, conditions relating to mental illness, concussion, delirium, and symptoms of alcohol and drug use.

The functional assessment establishes a lack of capacity to understand information, retain it in the mind, use it in the decision-making process and then to communicate the decision. All practicable steps to help that decision-making should be taken. Supported decision-making involves providing relevant information which can be done in a number of different ways. It is important to communicate appropriately and to make the person feel at ease.

Where someone has the fluctuating capacity, aiding their memory and making the decision in parts and at the right time can all help.

The third principle of the Act is that someone should not be treated as incapable of making a decision because their decision may seem unwise. It is the quality of the decision-making rather than the reasonableness of the decision that matters. We all have different ways of looking at the world.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

If you would like further advice on this matter please contact Miranda on 01328 710210. If you require advice on any other legal matter please call 01328 863231 or email law@hayes-storr.com.

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