Mental Capacity

The term MENTAL CAPACITY is referred to a lot, when considering Lasting Powers of Attorney and Court Deputyship but…

What does it all mean?


Mental capacity is the ability to make a particular decision at the time it needs to be made.

An individual with Mental Capacity has, at least, a general understanding of the particular decision that they need to make, why they need to make it, any information that is relevant to that particular decision and, what is likely to happen when they make that particular decision.

The individual should be able to communicate that particular decision through speech, signs, gestures or in another way.

In some circumstances, an individual may have the Mental Capacity to make certain decisions but not others (this may well depend on the complexity of the decision).

Testing Mental Capacity

When assessing whether someone has Mental Capacity, you need to consider the following TWO QUESTIONS and answer YES to BOTH in order to be confident that they have the mental capacity to make that particular decision:

DT - Yellow Brain

Do they have a mental or brain problem that stops their brain or mind from working properly?

DT - Jayde Brain

Is that problem causing them such difficulty now that they are unable to make this particular decision at the time it needs to be made?

If you answer NO and the person is therefore deemed to lack Mental Capacity in relation to that particular decision, this means that the person CANNOT:

DT - Yellow Brain

understand relevant information about that particular decision that needs making;

DT - Jayde Brain

retain that information in their mind long enough to make that particular decision;

DT - Coral Brain

weigh up the information in order to make that particular decision; or

DT - Yellow Brain

communicate their decision (even if only by; sign language, gestures, using pictures or squeezing a hand or blinking).

In some circumstances, you may want to get professional advice, from the individual’s GP, psychiatrist or psychologist.

Remember, your role as an Attorney is to EMPOWER the person that has appointed you as an Attorney and to help them make decisions for themselves or to take those decisions for them, in their best interest and as they would have done, had they been able to do so.

Mental Capacity Act 2005 and Code of Practice

The Mental Capacity Act 2005 governs Lasting Powers of Attorneys and The Mental Capacity Act Code of Practice gives explanations and  examples.

Examples within The Mental Capacity Act Code of Practice demonstrate how Attorneys must act

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