Someone who lacks capacity cannot, due to an illness or disability such as a mental health problem, dementia or a learning disability, do the following:
- understand information given to them to make a particular decision
- retain that information long enough to be able to make the decision
- use or weigh up the information to make the decision
- communicate their decision
The law works on the principle that everyone is assumed to have capacity to make decisions for themselves if they are given enough information, support and time. It protects your right to make your own decisions and to be involved in any decisions that affect you. Even if your decision appears unwise or eccentric, the Act makes clear that you should not be treated as lacking capacity for that reason.
Anyone can assess capacity. For everyday decisions, a relative or carer is the person most likely to need to assess whether you are able to make a particular decision. Professionals are more likely to have to formally assess capacity when decisions are more complex. If the decision is about treatment, a doctor may assess capacity; if it is a legal decision, a solicitor may assess capacity.
We will always start from the assumption that our client has the capacity to make the decision in question whether that is to give instructions for a Will or Lasting Power of Attorney.
We would make every effort to encourage and support our client to make the decision themselves, always taking in to account that if a person makes a decision which some may consider eccentric or unwise; this does not necessarily mean that the person lacks the capacity to make the decision.
We understand that It can be a very upsetting time for the client and their loved ones if we question the clients capacity and it is only as a last resort that if we believe that in order to protect our client and perhaps future disputes in regards to the contents of their Will for example, that we would request that they have their capacity assessed by a Medical Professional before taking further instructions from them.
If you have any queries about this article, please contact the Private Client Team at our South Street Office on 01243 790532.