Mental Capacity
Most people go about their daily lives making decisions for themselves. But what happens if they lose that ability?
Whether preparing for the expected or in response to the unexpected-illnesses, undergoing treatment, accident or misuse of drugs or alcohol can cause a temporary or permanent loss of capacity - it is useful to consider who you would wish to make decisions for you if you could no longer do so.
The Mental Capacity Act 2005 section 1 (2) states that "a person must be assumed to have capacity unless it is established that he lacks capacity." A person lacks capacity in relation to a matter if "at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain." So capacity to make a decision must be established at the time the decision has to be made and must be relevant to that particular decision. What is commonly referred to as "time and decision specific".
Once a person is defined as lacking capacity there can be a great deal of complexity that family and friends face, including financial management and wealth and tax planning. It is not always easy to understand exactly what are the legal obligations and requirements for those who will be responsible for a person's affairs. The following pages and material will explain some of the 'jargon' that you may be faced with, together with useful advice and links to other relevant sites.
As one of the leading private client and charity law firms in the country, our team brings a wealth of experience across all of the relevant disciplines. Not only do we act for individuals, their families and carers, but also trustees, beneficiaries, attorneys and accountants.
Many of our team are members of STEP, Solicitors for the Elderly, the Charity Law Association and the Association of Contentious Trusts and Probate Specialists (ACTAPS).
To assist in understanding the terminology used in much of the information you are likely to read, we have put together a short guide which can be found here A Guide to Terminology
For further information please contact
Further pages
Administration of a donor's or patient’s affairs
Advance Decisions
Court of Protection
Deputyships
Powers of Attorney
Lasting Powers of Attorney
Articles / Papers
How to assess capacity to make a will - Article written by Peter Steer for the British Medical Journal (BMJ)
Mental Capacity Act 2005: Update - Article written by Frances Mayne and Ann Cory for Elderly Client Advisor magazine
Useful links
Court of Protection website
Official Solicitor and Public Trustee
STEP
Solicitors for the Elderly
Charity Law Association
ACTAPS
