Broadly speaking, if someone cannot make a certain decision for themselves, they are often said to ‘lack capacity’ to make the decision. Capacity is function specific, based upon the decision at hand that needs to be made.
The legal framework applying to mental capacity can be found in The Mental Capacity Act 2005 (MCA). This legislation applies to individuals over the age of 16 years and one of the main principles defined in the MCA is that a person must be assumed to have capacity, unless it is established that he lacks capacity. If someone finds making a decision difficult, this does not necessarily mean they lack capacity.
The MCA sets out a two-part test for assessing capacity. The first part of the test looks at whether a person has an impairment of the mind or the brain and whether the disturbance is significant enough that they lack the ability to make a particular decision.
The second part of the test provides that a person will lack the capacity to make a decision if they cannot:
- Understand information relevant to the decision.
- Retain that information
- Use or weigh that information when making the decision; or
- Communicate a decision in any way
It is a common misconception that losing mental capacity is something which simply occurs when people age. Mental capacity can be lost on a temporary or a permanent basis at any age because of an injury, a mental health issue or an illness.
The National Mental Capacity Forum Chair’s annual report in 2016 estimated up to 2 million people in England lacked the mental capacity to make a specific decision at the specific time required.
What are the signs of lack of capacity?
- Confusion when making a decision
- Fear when being faced with making a decision
- Unable to remember information long enough to make a decision
- Inability to cope with day to day tasks independently
- Changes in personality, behaviour and rationality
What should I do if I think someone I know is losing capacity?
If you feel you are losing capacity or if someone you know is displaying signs of losing mental capacity, it is important firstly to speak to a medical practitioner about the situation.
It is also recommended to seek advice from a legal professional about the options available to you to provide you with protection if you do lose capacity. Whether you are concerned about your own potential loss of capacity; or if you are helping a loved one; it is important to ensure you have the necessary legal provisions in place to protect you or your loved one.
Lasting Powers of Attorney are legal documents covering health and welfare related decisions as well as financial decisions. Lasting Powers of Attorney enable you to nominate a person or people you would like to assist you or make decisions for you if you find yourself in a position where you no longer have the capacity to make the decisions yourself.
This can be a very sensitive issue for people, and it is important you seek legal advice to ensure that safeguards are in place.
For more information about capacity, what to do if you are concerned about planning for the future or if a loved one is having difficulty making decisions please contact the friendly Private Client team at Barrett and Co Solicitors by telephoning 0118 958 9711 or by emailing [email protected] and someone from the team will be in touch to assist you and guide you through the next steps. Fixed fee appointments of £95 inclusive of VAT can be offered if you would like to ask any questions and find out more information.
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Get in Touch
Juliette Spanner is an Associate of the Chartered Institute of Legal Executives and works in the Private Client department at Barrett & Co.
If you would like to get in touch with Juliette or have a question for her regarding her area of work, please email her at [email protected] or call her on 0118 958 9711.