What is capacity and how is it assessed?

When we refer to the word “capacity”, we are referring to “mental capacity”, which is the ability to understand information and make decisions. This relates to decisions affecting daily life but also more significant decisions, such as making a Will or getting married.

Capacity is different depending on the individual, the circumstances and decision(s) to be made. Therefore, it’s possible for an individual to have capacity to make some decisions, but not necessarily other decisions. 

The Mental Capacity Act 2005 (“MCA”) defines how capacity is to be assessed and is designed to promote autonomy and protect people who lack mental capacity.

The Test

The statutory test for capacity is set out in section 2(1) MCA 2005:

a person lacks capacity in relation to a matter if, at the material time they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

The statutory test to determine whether an individual lacks capacity is therefore two-fold:

1. Is the individual unable to make a decision for themselves in relation to the matter (the “functional test”); and
2. Is their inability because of an impairment of, or a disturbance in the functioning of, the mind or brain (the “diagnostic test”).

The functional test dictates that an individual will not have capacity if they cannot:

1. Understand information relevant to the decision;
2. retain that information;
3. use or weigh that information as part of the process of making the decision; or
4. communicate the decision (by any means).

The capacity assessor must provide evidence to show that the individual lacks capacity on the balance of probabilities. For the purpose of any application to the Court of Protection relating to capacity, their evidence is given in a court form known as “COP3”.

The Core Principles

The MCA also sets out five core principles to follow when assessing capacity:

1. A person must be assumed to have capacity unless it is established that they lack capacity.

There is a presumption that a person has capacity to make decisions for themselves unless proven otherwise. Just because a person has a disability or impairment doesn’t automatically mean they lack capacity and a lack of capacity cannot simply be established by reference to an individual’s age, appearance, condition, or aspect of their behaviour.

2. A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.

All practicable steps must be taken to enable the individual to make a decision. For example, if the individual is unable to speak, then writing equipment or pictures should be brought to the capacity assessment and/or sign language should be used.

An individual may also have fluctuating capacity, so there may be times of the day when an individual is more lucid and has greater understanding (i.e. in the morning or afternoon, or after they have taken their medication) so this should always be catered for during a capacity assessment.

3. A person is not to be treated as unable to make a decision merely because they make an unwise decision.

An individual should be able to weigh up the relevant information (information that allows them to appreciate the reasonably foreseeable consequences of their decision) and make their own decision, even if they make an unwise decision.

4. An act done, or decision made, under the MCA 2005 for or on behalf of a person who lacks capacity must be done, or made, in their best interests.

Anyone who is allowed to make a decision for or on behalf of an individual who lacks capacity (such as a “Deputy” appointed by the Court of Protection) must do so in the best interests of the individual who lacks capacity.

5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

An individual’s rights and freedom of action should be respected as far as possible. All options available to the individual should be considered and the course of action that should be taken is the one that can be effectively achieved in the least restrictive way.

For example, if an individual is struggling to look after themselves at home, a range of options should be considered such as carers

The importance of capacity

Considering the increasing age population, diagnoses of dementia and increase in acquired brain injuries, the issue of capacity is becoming even more prevalent. Many of us think, “it will never happen to me”, but the sad reality is that an increasing number of us will, at some point, lose capacity to make decisions about our own lives.

When an individual’s capacity is in doubt, an assessment of capacity should be carried out each time a decision is to be made. The person assessing capacity does not always have to be an expert (i.e. a family member or carer would assess whether the individual agrees to be fed or bathed) but it may be necessary seek a professional opinion in relation to more significant decisions.

If an individual loses capacity and does not have a Lasting Power of Attorney in place (appointing someone else to make decisions on their behalf), protection is afforded by the Court of Protection by authorising the appointment of a Deputy, who can either be a lay Deputy (such as a family member) or a professional Deputy. Deputies are appointed to manage the individual’s property and financial affairs and/or their health and welfare.

As a Deputy, ongoing capacity assessments are likely to be needed to determine whether the individual has capacity to make certain decisions. These capacity assessments are often carried out by experts in mental capacity and relate to decisions including capacity to manage property and affairs, capacity to make a Will and capacity to make a gift.  Where an individual lacks capacity to make a particular decision, a Deputy is required to make an application to the Court of Protection, supported by the expert capacity evidence, for authority to make a decision on the individual’s behalf.

How we can help

Our specialist and highly experienced Court of Protection team can advise on issues concerning property and financial affairs Deputies. Whether you are concerned about a relative’s capacity, you have been appointed as a lay Deputy, or seek the appointment of a professional Deputy, we are able to assist with many complex matters including applications to the Court of Protection to determine capacity relating to many different decisions.