What does capacity mean legally speaking? 

In the last article, we briefly touched upon the topic of capacity and what it may mean to you but what does it mean legally speaking? Who decides you don’t have it any more? How do they make that decision? How am I protected from someone deciding I don’t have capacity?

Well first of all, you should know that there are different tests for capacity depending on the specific question you are asking. The ones you may be familiar with are capacity to marry, capacity to litigate, capacity to write a Will or the big one, capacity to manage your personal finances.

It is this last capacity question that brings us into the sphere of Lasting Power of Attorney’s (LPAs) and Deputyships.  Essentially, if you have capacity, you can execute an LPA choosing your attorney and if you are deemed not to have capacity, then the Court of Protection will appoint you a deputy – either a professional or a lay person such as a trusted family member who makes an application to the Court to be appointed.

So who decides this extremely life changing question about whether you have capacity I hear you ask? Don’t worry, it isn’t your children or your spouse/partner trying to lock you up and throw away the key. It must be a medically trained and independent third party such as a GP or consultant or similarly qualified individual.

The capacity assessment itself is a ‘test’ that is enshrined in the Mental Capacity Act (MCA) 2005 and comes in two stages:

• Firstly there must be an impairment or disturbance in their mind or brain. This means the person could have suffered a brain injury (i.e. had a stroke or been in a road traffic accident) or may be suffering from a condition associated with mental health or drug/alcohol misuse.
• The above impairment must then have an impact on their decision making ability. To ‘fail’ this stage they will be unable to understand the information relating to the decision in question, be unable to retain the information provided for the decision (for as long as required to make the decision), unable to weigh up the information (i.e. risks, outcomes, pros and cons) and lastly, unable to communicate the decision.

Where the medical professional concludes you have failed both parts of the test, they will record the decision in formal document and then a decision will be made about applying for a Deputy, as appropriate or necessary.

It is the second stage of the test that is the most tricky to assess because capacity is so dynamic, it can fluctuate and is decision and time specific. It is important to remember that even if a person is initially deemed not to have capacity, you must review this regularly and also support the person in making their own decisions.

On this last point, the MCA has five principles which further puts the person whose capacity is in question, at the forefront of this process and ensures their protection for decisions made on their behalf. These principles are:

• Capacity is always assumed, so someone has to establish that it has been lost and this must be a medical professional or similar, as mentioned above.
• A person can’t be treated as unable to make a decision unless all practicable steps have been made to help them without success. The MCA specifically states that you must aim to provide the information required to the person in an appropriate and suitable manner and take all steps to explain it in a variety of ways to help the person understand. This could include using simple language, visual aids or other means. 
• An unwise decision does not mean that the person has lost capacity, therefore just because you may not agree with someone’s decision does not mean they do not have capacity.
• If a decision is made for someone who has lost capacity, it must be done in their best interests. You should aim to ask the person what their wishes and feelings are when making a decision for them.
• Any decision taken must be least restrictive of a person’s rights and freedoms.

As you can probably tell, this is an extremely complex area of law and whilst I appreciate this was just a brief, whistle-stop tour through capacity and the legal framework it is an important and ever relevant legal topic through all our lives and it is helpful to always keep in mind that if a person’s capacity is questioned – there is legal protection in place for that person.

If you feel that you would like some guidance then please do not hesitate to contact our specialist Court of Protection team where one of our highly trained and knowledgeable staff members will be able to provide you with that much needed advice. Please click here for a call back or message us your enquiry.

Keep an eye out next month where will discuss LPAs vs Deputyships in a bit more depth.