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How We Assess Capacity

The Mental Capacity Act (2005) provides a framework for assessing a person’s mental capacity to make a particular decision at a particular time. Healthcare, welfare and financial decisions can all be assessed using the Act as a framework although it is just one of six different tests that can be used depending upon the decision being assessed. Other decisions such as whether a person has the mental capacity to create a Will or join in with Court proceedings require different, common law tests. It’s imperative that those who assess mental capacity are familiar with which test to apply in different situations. These tests are the same tests that lawyers are familiar with and judges use to make decisions in court. It is vitally important that it’s clear from the start what decision we are assessing whether the person has the mental capacity to make. A focused, specific decision makes for an accurate assessment whereas a more general decision makes for a less accurate assessment and flies in the face good practice.

We Can Be Instructed To Assess Mental Capacity For A Range Of Decisions

The most common being;

  • Capacity to manage finances
  • Capacity to create a Lasting Power of Attorney
  • Capacity to make welfare decisions
  • Capacity to make a will (testamentary capacity)
  • Capacity to conduct Court proceedings (capacity to litigate)

We can also assess the mental capacity of children in certain circumstances where the Act permits. These are;

  • The management of property and affairs of someone under 16 if they are likely to lack capacity when they turn 18
  • The criminal offenses of ill-treatment or wilful neglect of a person lacking capacity regardless of their age

Our experience of working with children with learning disabilities and cognitive impairments spans back to 2005 and we understand the different approaches required when assessing the capacity of adults or children. We also understand that communication is key to helping someone make decisions for themselves, that’s why we do all we can to identify appropriate communication methods for the person involved.