How is mental capacity determined for power of attorney?

The Mental Capacity Act allows individuals to use lasting power of attorney to appoint someone to make decisions about their health and welfare and property and finances (known as an attorney). In order to be able to choose an attorney, you must have mental capacity. 

Mental capacity is a vital aspect of our lives that enables us to make everyday decisions independently. However, it's not a straightforward concept, and determining someone's mental capacity involves a careful evaluation of various factors. 

First and foremost, it's essential to recognise that having a medical condition, illness, or injury does not automatically mean that an individual lacks mental capacity. Whether it's dementia, learning disabilities, brain injuries, mental health illnesses, or the aftermath of a stroke, people with these conditions can still possess the capacity to make decisions.

The Mental Capacity Act emphasises the importance of personal decision-making and establishes the principle that individuals should be presumed to have the ability to make their own decisions unless proven otherwise. 

It's crucial to understand that making unwise or seemingly irrational decisions does not necessarily indicate a lack of mental capacity. People have the right to make choices that others may perceive as unwise or silly. Mental capacity assessments consider the ability to understand, retain, and use information to make rational decisions, rather than the perceived wisdom of those decisions.

How do you test mental capacity?

Measuring mental capacity typically involves a two-stage test:

1. Impairment of mind or brain: The first stage assesses whether the individual has an impairment of their mind or brain, which can result from various factors such as illness, injury, or substance misuse.

2. Inability to make decisions: The second stage evaluates whether this impairment leads to an inability to make decisions when necessary. This inability is characterised by the individual's incapacity to understand, retain, or use the presented information to make a reasoned decision.

Even if someone struggles to make decisions independently, it's crucial to explore whether they can do so with support and guidance from others. If a person can make informed choices with the right information and assistance, even if it takes more time than usual, they are still considered to have mental capacity.

Key signs of deteriorating mental capacity

Recognising when someone's mental capacity may be deteriorating can be challenging, especially for loved ones. Some signs to watch out for include:


Mental Capacity Assessment

When doubts arise regarding an individual's mental capacity, a mental capacity assessment can provide clarity. Anyone with regular contact with the individual can assess their mental capacity, but in legal situations, an official test may be required, such as when selling property.

Under the Mental Capacity Act 2005, this assessment aims to establish, on a balance of probabilities, whether the individual lacks the capacity to make decisions. It involves a thorough examination of their ability to understand, retain, and use information to arrive at a reasoned decision.

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