You Either Have Mental Capacity Or You Don’t, Right?
Wrong! Many people think that you simply have capacity or do not have capacity. Many people also think that because someone has a diagnosis of a condition, such as dementia, they automatically lack capacity. However, capacity is decision and time specific. People can sometimes make certain kinds of decisions but not have the mental capacity to make others. For example, someone may be able to decide what groceries or toiletries to buy but be unable to understand about making financial investments.
The coronavirus pandemic has impacted all of our lives in one way or another. As a solicitor specialising in mental capacity issues, I am speaking to more people than ever before who are concerned about their loved ones’ capacity. It seems that the abrupt suspension of normality, loss of routine, social distancing and restrictions on visits has had a negative knock-on effect to the health and wellbeing of people and their capacity.
So, how do you work out whether someone has capacity to make a particular decision? Understanding the Mental Capacity Act is crucial and where a specialist solicitor like me can help.
The Mental Capacity Act says that every adult has the right to make his or her own decisions, even unwise ones, and must be assumed to have capacity to do so unless it is proved otherwise. Therefore, you start with a presumption of capacity. .
An individual must be supported to make his or her own decisions and all the appropriate help should be given before it is decided that he or she does not have the capacity to make a particular decision. I often help my clients by drawing diagrams or creating lists of ‘pros’ and ‘cons’. Sometimes you need to think about the environment and time of day – many people’s decision making abilities fluctuate throughout the day. I do not know about you, but I’m better at making decisions when I am well fed and content rather than when I’m hungry!
You must ensure that you do not decide someone lacks capacity to make a decision simply because of age, appearance, assumptions about their condition and/or behaviour. The Mental Capacity Act provides that a person lacks capacity if they cannot do one or more of the following:
- Understand information relevant to the decision
- Retain that information long enough to make the decision
- Weigh up that information as part of the decision-making process
- Communicate their decision (this does not have to be verbally)
You may think that’s easy enough; it’s just four things! However, assessing someone’s capacity is a complex task. For example, when looking at their understanding, you need to ensure the person is not simply nodding their head or saying what they think you want to hear. Spotting this is something that comes with experience.
We can help you with many issues relating to mental capacity including:
- if a loved one needs some assistance, ascertaining whether a Lasting Power of Attorney can be created or whether an application for Deputyship through the Court of Protection is required*
- if you are already an attorney, we can help ascertain whether the person you are an attorney for has capacity to make a particular decision and if not, advise you in your role as attorney, such as the process for making best interests decisions**
Unfortunately, the pandemic and lockdown’s knock-on side effects will likely be with us for a long time and it is therefore so important that we all understand some basics around mental capacity. If you just remember two things about mental capacity, remember that capacity is decision specific; and the starting point is that everyone has capacity to make a decision.
Article written by Bekka Fuszard TEP
Solicitor at Whitehead Monckton
Chair of Building a Dementia Friendly Maidstone
Dementia Friends Champion
02 October 2020
* see: https://www.whitehead-monckton.co.uk/for-individuals/succession-planning/lasting-powers-of-attorney and https://www.whitehead-monckton.co.uk/for-individuals/succession-planning/deputyships
** see: https://www.whitehead-monckton.co.uk/for-individuals/succession-planning/vulnerable-and-elderly-clients