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How does the law define a person’s capacity to make a decision and how should capacity be assessed?

Our solicitors at My Local Solicitor Ltd are specialists in the provision and execution of Lasting and Enduring Powers of Attorney.

Central to the registration of LPAs is the donor’s capacity.

How does the law define a person’s capacity to make a decision and how should capacity be assessed?

Presuming someone has capacity

  • The starting assumption must always be that a person has the capacity to make a decision, unless it can be established that they lack capacity.

Understanding what is meant by capacity and lack of capacity

  • A person’s capacity must be assessed specifically in terms of their capacity to make a particular decision at the time it needs to be made.

Treating everyone equally

  • A person’s capacity must not be judged simply on the basis of their age, appearance, condition or an aspect of their behaviour.

Supporting the person to make the decision for themselves

  • It is important to take all possible steps to try to help people make a decision for themselves.

Assessing capacity

Anyone assessing someone’s capacity to make a decision for themselves should use the two-stage test of capacity.

  • Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? (It doesn’t matter whether the impairment or disturbance is temporary or permanent.)
  • If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?
  • Does the person have a general understanding of what decision they need to make and why they need to make it?
  • Does the person have a general understanding of the likely consequences of making, or not making, this decision?
  • Is the person able to understand, retain, use and weigh up the information relevant to this decision?
  • Can the person communicate their decision (by talking, using sign language or any other means)? Would the services of a professional (such as a speech and language therapist) be helpful?• Is there a need for a more thorough assessment (perhaps by involving a doctor or other professional expert)?
  • Only qualified solicitors at My Local Solicitor Ltd conduct meetings with prospective donor’s and their family and so you can be assured that the best possible service is being provided to assist at those important moments.Contact us on 01244 478 730 if you have concerns about capacity and what it may mean for you.


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