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:

  1. Does the person have a disturbance in the functioning of their mind, e.g. Alzheimer’s Disease, learning difficulties, autism, personality disorder?
  2. 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:

  1. Can they understand the relevant information?
  2. Can they remember the information to be able to make the decision?
  3. Can they use or weigh the information as part of the decision making process?
  4. 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.