The Court of Protection & deputies

Publish date

21 December 2020

Capacity – what is it and how it can affect you or your family

Capacity is the ability to make a decision for oneself. It is both time specific and decision specific.

It might fluctuate from one day to the next, or it might be better at a certain time of day compared to another (i.e. in the morning, rather than the afternoon). Someone must be presumed to have capacity unless proven otherwise.

How to assess if someone lacks capacity to make a decision?

If you suspect that you or a close family member may be starting to lack capacity, there is a two stage process to follow.

First, it is important to identify if they have an impairment or disturbance of the mind or brain, either temporary or permanent (for example, a mental health condition; they are living with dementia, or a brain injury).

The second stage is to demonstrate if they are unable to fulfil one or more of the following four key elements:

  • Understand the information relevant to the decision (including the consequences of making or not making the decision)
  • Retain that information
  • Weigh up and use the information
  • Communicate their decision – by any means (i.e. verbally or by sign language).

For complex decisions a medical or health professional can complete a capacity assessment.

How to plan ahead

It is better to plan ahead than to wait to act until you or a family member loses capacity. Having Lasting Powers of Attorney (LPAs) in place now will give you peace of mind, as your attorneys will be able to deal with your affairs at what is likely to be a difficult time for you and your family.

There are two types of LPA

  • Health & Welfare
  • Property & Financial Affairs.

More information on how they work can be found here.

If you, or someone you know, loses capacity, there are two paths to follow.

If there are LPAs in place, your attorneys can make decisions on your behalf in your best interests.

If LPAs are not in place you may need to apply to the Court of Protection to appoint a deputy.

Capacity and making a will

If you believe a family member did not have capacity to make their will, you may be able to challenge its validity.

Ask yourself three questions:

  • Did they understand the nature of making a will and its effects?
  • Did they understand the extent of the property of which they were disposing?
  • Were they able to comprehend and appreciate the claims to which they ought to give effect and were they affected by any disorder of the mind which influenced their choice of terms in the will when disposing of their property?

If all three parts of the test are not satisfied, you may be able to challenge the will on the basis of a lack of testamentary capacity.

We know that capacity can be a sensitive subject and having conversations with loved ones around the issue can be emotive.

However, in the long run it is important to address any concerns around capacity head on.

If you have any questions around capacity then please get in touch with one of our specialist lawyers today.

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