The Mental Capacity Act 2005 changed the approach of the law to the understanding of whether someone has the capacity to make a decision.
There is now a 2 stage test:
- Does the person have a disturbance in the functioning of their mind, e.g. Alzheimer’s Disease, learning difficulties, autism, personality disorder?
- Are they able to make the decision?
The test is to be applied to the specific decision which needs to be made. It is possible that a person would lack capacity for one decision but not for another. For example they know what they need to buy when shopping but cannot understand how to invest/spend the money from their house sale.
The lack of capacity may be temporary or permanent.
Factors taken into consideration when looking at whether someone can understand and make a decision are:
- Can they understand the relevant information?
- Can they remember the information to be able to make the decision?
- Can they use or weigh the information as part of the decision making process?
- Can they communicate the decision?
Someone is not considered to lack capacity just because they make an unwise decision.
The Court of Protection can only make a decision if someone lacks capacity.
However it is not always clear if someone lacks capacity or not and an expert opinion can be required.