What is Meant by Mental Capacity?

by | Jun 14 2021 | Family Law, Popular, Probate, Wills & Probate

Share this article
what does mental capacity mean? | 5 minute read

The ability to make our own decisions is one of the things that makes us human. We go through life choosing what we do and creating our own paths. However, it’s not always that simple for everyone. Some will never experience the privilege of making their own decisions. Others won’t be able to make their own decisions forever. 

This article explains what we mean by “mental capacity” when it comes to personal and legal matters. If you have a loved one who needs our services, you can get in contact with our team today for some advice. 

Hands saying yes and no about mental capacity

What is mental capacity?

Having mental capacity is being able to make your own choices without the assistance of another person. Mental capacity is an essential legal requirement when making personal decisions. 

As an example, a person who lacks the capacity to make decisions alone could be someone who has a:

  • Learning disability 
  • Mental health condition
  • Dementia 
  • A mental defect due to an illness
  • A mental defect induced by drugs or alcohol 

In these instances, it’s common that there will be a carer or family member involved who makes important decisions on behalf of the individual. This can range from personal choices, like clothing, to larger life decisions like where they live and assisting with their legal affairs.

Who can assess SOMEONE’S capacity?

You can usually assess mental capacity in a two-step process. This is normally conducted by a medical professional, psychiatrist or carer. 

  1. The professional will start by examining the individual’s mental health and will look at mental impairment, age, illness, or factors such as trauma or drug use. 
  2. If an impairment is evident, the next step will be to question whether the individual needs help when making decisions. People should be allowed time to make decisions on their own. However, if they cannot understand information around a decision, retain that information or weigh up the information when making a decision, then that person will be deemed to have lost their capacity. 
a woman grabs her head because she has lost mental capacity

What is the mental capacity act (MCA)

The Mental Capacity Act allows others to make important decisions for those who cannot make those decisions themselves. It safeguards the individual by choosing a trusted person to handle their affairs.

The MCA can do this by creating a Lasting Power of Attorney or giving someone deputyship. To have full legal deputyship, you will need to apply to the Court of Protection

What are the 5 principles of the Mental Capacity Act?

The MCA has 5 key sections or “principles”. These determine what mental capacity is and how to spot when someone is losing that capacity. Principles 1-3 look at the process of losing capacity, with principles 4 and 5 supporting the process of deciding that it is lost. 

1. A presumption of capacity

A presumption of capacity suggests that everyone has the right to make their own decisions and will inherently have capacity until proven otherwise. In addition, this principle addresses the possibility of discrimination: you cannot assume that someone lacks capacity because of a physical or psychological ailment.

2. Supporting those needing to make decisions

It’s important to support those who may be losing their mental capacity. This means that you must give someone as much support as possible before treating them as though they cannot make decisions alone.

3. Unwise Decisions

Just because someone makes a decision that you may deem eccentric or odd doesn’t mean they don’t have mental capacity. It’s unfair to treat someone differently because they act differently to you.

4. Best interests

When someone does lose their mental capacity, it’s important to act in their best interests. According to their needs, anything that is now done on behalf of that person must be done appropriately.

5. less restrictive option

This principle is applicable when someone has officially lost their mental capacity. The person acting on behalf of the individual who loses capacity must be doing so in the least restrictive way.

when does mental capacity come into consideration?

If a person comes to a law firm with a legal matter, they will need to have mental capacity for a lawyer to act for them. If a legal professional acts for someone who doesn’t have mental capacity, this could be seen as being negligent. Likewise, it’s easy for others to manipulate someone who is losing mental capacity. For example, a lawyer would not write a will for someone who lacks mental capacity.

The reason for this is that the will could be open to challenge or manipulation after they die. You can apply to make a will on behalf of someone else if you make an application to the court of protection.

What are the risks with mental capacity?

The largest risk with mental capacity, and assessing this capacity, is the possibility for manipulation. That’s why it’s important that everything is handled according to the law prior to someone losing that capacity.

Deprivation of liberty is when a deputy or carer makes decisions for or places restriction on someone who may lack mental capacity. Despite its name, deprivation of liberty is not always a negative thing. It can come with the intention to protect someone, such as stopping them from leaving their care homes or walking around at night. If you appoint someone as a DoLS (Deprivation of Liberty Safeguard), they will have to state what the purpose of the deprivation is and how long it will need to last (can be up to 12 months)

However, it is against the law for an individual to deprive someone of their liberty without being legally granted permission. This doesn’t just apply to individuals – it also includes governing bodies and medical professionals such as the NHS or local authorities.

What should I do if my loved one is losing their mental capacity?

It can be tough to spot when someone is losing their mental capabilities. Whatsmore, making legal choices isn’t always at the top of our to-do lists, so sometimes we leave these things until it’s too late.

The most important thing is to act quickly. If someone you love starts to show signs of lacking capacity, you should make sure that person has organised their legal affairs before their mental capacity deteriorates. Getting in touch with a lawyer in the early stages should be your priority, to organise things before you miss your chance. 

when do i need to involve a lawyer?

If you are worried about losing your own mental capacity, you should seek legal advice from a lawyer who specialises in private client law. This way, you can make sure everything that needs to be done is done, and you no longer have to worry about it.

However, if you are concerned about a loved one and need to make decisions on their behalf, you’ll need to make specific applications. It’s important that these applications, such as appointing an LPA  or applying for deputyship, are executed using the correct legal help, to avoid expensive penalties in the future.

Worried about a loved one?

Get in touch today if you need our help understanding mental capacity.

Need an LGBT Lawyer on your side?

We’re here to assist. Just tell us what you need help with and we’ll call you back to arrange a meeting.

* indicates that a field is mandatory. Please note all enquiries are handled by our referral partner Britton and Time Solicitors and that by submitting an enquiry, you are providing your permission for your contact and case details to be passed on to Britton and Time Solicitors.

Room for more? Check out our latest blogs and insights
What Is Sexual Orientation Discrimination?

Despite LGBT rights having made monumental steps towards equality, sexual orientation discrimination still occurs in the modern day. In this article, we outline exactly what sexual orientation discrimination is, alongside some examples and routes you can take if...

Revenge Porn | Everything You Need To Know

Recent studies into revenge porn reveal that there has been a 60% rise in cases when compared to the previous year, with an estimated 2,700 reports. Most commonly, reported incidents have come from those in their teens and their mid-twenties. In this article, we have...

Submit a Comment

Your email address will not be published. Required fields are marked *