Capacity – what it is and how it can affect you or your family

Capacity is the ability to make a decision for oneself. It is both time specific and decision specific.

Someone’s capacity might fluctuate from one day to the next, or it might be better at a certain time of day compared to another (i.e. in the morning, rather than the afternoon).  Someone might have capacity to make some decisions, but not others.

Someone must be presumed to have capacity, unless it is proven otherwise.

How to assess if someone lacks capacity to make a decision?

If you suspect that you or a close family member may be starting to lack capacity to make a particular decision, there is a two stage process to follow.

Consider:

1. Can the person make the decision at this time i.e. can they:
   • Understand
   • Retain
   • Use and weigh the relevant information
   • Communicate (by any means, i.e. verbally or by sign language) their decision?

2. If not, is it because of an impairment of, or disturbance in the functioning of, the mind or brain?

An impairment of or a disturbance in the mind or brain may be either temporary or permanent (examples could be, a mental health condition, the person living with dementia, or a brain injury).

The simple existence of an impairment of or a disturbance in the mind or brain does not automatically lead to a lack of capacity, and a lack of capacity cannot be established merely because of a person’s age, appearance, condition or an aspect of their behaviour.  It is therefore very important to follow this two-part test when assessing capacity.  Similarly, if someone’s understanding is usually better, for example, in the morning when they might be less tired, the issue of their capacity should be assessed at that point in the day

For complex decisions a medical or health professional can complete a capacity assessment.

How to plan ahead for losing capacity

It is better to plan ahead than to wait to act until you or a family member loses capacity insofar as a particular decision is concerned. Having Lasting Powers of Attorney (LPAs) in place now will give you peace of mind, as your attorneys will be able to deal with your affairs at what is likely to be a difficult time for you and your family.

There are two types of LPA

• Health & Welfare
• Property & Financial Affairs.

More information on how they work can be found here.

If you, or someone you know, loses capacity, there are two paths to follow.

If there are LPAs in place, and they have been registered with the Office of the Public Guardian, your attorneys can make decisions on your behalf in your best interests.

If LPAs are not in place you may need to apply to the Court of Protection to appoint a deputy.

Capacity and making a will

If you believe a family member did not have capacity to make their will, you may be able to challenge its validity.

Ask yourself three questions:

• Did they understand the nature of making a will and its effects?
• Did they understand the extent of the property of which they were disposing?
• Were they able to comprehend and appreciate the claims to which they ought to give effect and were they affected by any disorder of the mind which influenced their choice of terms in the will when disposing of their property?

If all three parts of the test are not satisfied, you may be able to challenge the will on the basis of a lack of testamentary capacity.

If you or a family member have not made a will, or you/they have a made a will and wish to change its terms, and it is established that you or they no longer have the necessary capacity to give those instructions to make or alter a will, steps may be taken to apply to the Court of Protection for authority to make what is called a statutory will.

The statutory will application process can be quite detailed and lengthy.  It is important to be able to justify the making of the application as being in the best interests of the person whose will it would concern.

More information about statutory wills can be found here.

We know that capacity can be a sensitive subject and having conversations with loved ones around the issue can be emotive.

However, in the long run it is important to address any concerns around capacity head on.

If you have any questions around capacity then please get in touch with one of our specialist lawyers today.