Thinking about capacity as an Attorney or Deputy

I think we’ve all heard the phrase used “they lack capacity” but it’s unusual for someone not to be able to make any decisions for themselves.   A lack of understanding around capacity and in particular, confusion around capacity being decision specific is common.  It is important that attorneys and deputies know about capacity as generally, they only have authority to make decisions on behalf of someone if they lack capacity to make the decision themselves.

Although a formal capacity assessment with a specialist capacity assessor is sometimes necessary (particularly where the decision is complex, has significant consequences or carries risk) there are everyday decisions where someone’s capacity needs to be considered informally by attorneys, deputies, family members, health care professionals and others.  Whether it’s an informal or formal assessment, it’s important to follow the Mental Capacity Act 2005 (MCA 2005).

The three key principles when it comes to deciding whether someone has capacity to make a decision provide that a person must be assumed to have capacity unless it is established that they lack capacity, a person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success and a person is not to be treated as unable to make a decision merely because they make an unwise decision.

A lack of capacity cannot be established merely because of a person’s age, appearance, condition or an aspect of their behaviour. Mental capacity is both decision specific and time specific. For example, they may have capacity to make decisions about where they live and their care, but not have capacity to manage their finances to pay for the arrangements.  They might be able to go to the local shop and buy a few essentials, but not have capacity to manage and pay their utility bills.

A person must be given all appropriate help and support to enable them to make their own decisions.  Think about what’s the best time of day and location for them. What about their communication needs – would diagrams, hearing aids, visual aids, gestures help?

An unwise decision is not, by itself, sufficient to indicate lack of capacity.  It may not be what you or I would do but an irrational decision is still a decision and one that they are entitled to make if they have capacity to make it.  That said, doubt may be raised if their decision is out of character.

The MCA 2005 then provides that a person lacks capacity to make a decision if they cannot understand information relevant to the decision; or retain that information; or use or weigh that information as part of the process of making the decision; or communicate the decision (by any means) and their inability to do so is because of an impairment or disturbance in the functioning in the person’s mind or brain.

If helping someone to make a decision, you should identify and provide relevant information and include options, including that would happen if they do not make a decision.  It is not necessary that they understand every element of what is being explained to them provided they understand the main points.

Retaining information for even a short time may be enough for some decisions.  Can they use and weigh up the information, such as the advantages and disadvantages, to reach a decision?   They then need to be able to communicate that decision – verbally or non-verbally.

A formal medical diagnosis is not necessary, and an impairment or disturbance can include medical conditions causing confusion, drowsiness, concussion, and the symptoms of drug or alcohol abuse. There needs to be a causal link between the disturbance or impairment and the inability to make the decision(s) in question.

If the above has been followed and the conclusion is they lack capacity to make the decision and the decision is to be made on their behalf this must be in their best interests and in the least restrictive way possible.  A topic for another article!

Understanding the relevant legislation is crucial and the MCA 2005 and its key principles are to be followed by everyone and help ensure no-one’s voice is forgotten.  It is a complex area and attorneys and deputies should not hesitate to get support and guidance from a lawyer specialising in this area.

Here at Whitehead Monckton we have a lawyers who specialise in assisting attorneys and deputies.  We can assist with all elements of the role including advising on capacity and best interests decision making, assisting with annual OPG reports and applications to the Court.

Written by Bekka Fuszard TEP, Associate Solicitor at Whitehead Monckton and accredited Lifetime Lawyer – June 2024

Photo: the Court of Protection deputyship team at Whitehead Monckton – Stephen, Jo, Katie and Bekka