Mental capacity is the ability to make decisions. Whether large or small, we all make many decisions each day, often without being fully aware of what decisions we’re making. Sometimes we pride ourselves on a good decision, other times we regret what we have done. However, for some people, the ability to make decisions becomes impaired (either temporarily or permanently) which may be due to an injury or condition such as dementia or learning disabilities.
This poses a potential problem because despite our cognitive abilities, decisions still need to be made; where one might live, whether a person has the ability to create a will or leave a financial gift to someone and whether a person can create a Lasting Power of Attorney are just a few examples. What happens when decisions need to be made but a person lacks the ability to make them?
If a person previously appointed an attorney under a Lasting Power of Attorney (or Enduring Power of Attorney for financial decisions) then the appointed attorney can make many decisions as if it were the person making them themselves. Just as long as the attorney is acting in the person’s best interests. The same applies to court appointed deputies. Being next of kin doesn’t provide any lawful basis for making such decisions so where there is no appointed attorney or deputy, who makes the decisions when a person lacks mental capacity?
Mental capacity assessments generally fall into two categories; those within the scope of the Mental Capacity Act 2005 (MCA) and those outside of the scope of the MCA. Health, welfare and financial decisions being the former and all other decisions being the latter. That said, there are some health and welfare decisions so person they are excluded from decisions that can be made under the MCA such as; whether to marry, whether to have sex and decisions about voting.
For many decisions the MCA provides a framework for assessing a person’s mental capacity. A 2-stage test identifies whether there is an impairment of or disturbance in the functioning of a person’s mind or brain. If so, whether the impairment or disturbance is sufficient that the person lacks the capacity to make a particular decision.
Once the 2-stage test has been considered, an assessor can then determine whether, on the balance of probabilities, the person has, or lacks the mental capacity to make the decision. If they lack capacity, a decision is made in their best interests. For smaller, everyday decisions the assessment and best interests decision are undertaken by a single person. For more significant, complex or contentious decisions, the assessment is undertaken by a health or social care professional such as a Psychiatrist or Social Worker and the best interests decision is made by a Multi-Disciplinary Team or in some cases, a court.
There are some decisions that are not covered by the MCA and require other, common law tests to determine whether the person has the mental capacity to make the decision. These include; capacity to make a will, capacity to make a gift, capacity to enter into a contract, capacity to litigate and capacity to enter into a marriage.