Independent Mental Capacity, Testamentary Capacity Assessments & Later Life planning

What is a Mental Capacity Assessment?

A Mental Capacity Assessment (MCA) is used to determine whether a person can make a specific decision at a specific time. A persons capacity can fluctuate and may be affected by a variety of factors such as mental health needs, illness, disability and more temporary issues matters such as medication and being acutely unwell, for example a UTI. When someone is unable to make a decision, others may need to act or decide on their behalf—always in the person’s best interests. For more information on this see the Mental Capacity Act Code of Practice, Chapter 5. Where someone may be acutely unwell and it is possible they may get better to be able to participate more fully in assessment we must wait until that happens. An example of this could be someone finishing a course of antibiotics.

We all make thousands of decisions every day—most quickly and without real effort. Some are smaller decisions like what you’d like to eat or wear that day, while others involve major life changes such as where to live, how to manage finances, or how care and support needs should be met. When a person is unable to make certain decisions, a formal assessment is needed to understand what support or decision-making framework should be used.

How is Mental Capacity Assessed?

The Mental Capacity Act 2005 sets out the legal framework for assessing whether someone has the ability to make a particular decision. Capacity is decision-specific and time specific assessment —a person may be able to make some decisions but not others, and capacity can change over time. The person assessing must always uphold all practicable steps to support someone to make a decision. This means information must be delivered in an accessible way, defined by the persons communication needs. What one person needs, is different to the next. We have assessed capacity outside, on the move walking, in people’s own homes, low lighting it is what will make the person most comfortable to be able to fully participate.

Different decisions may require different legal tests. For example:

• Everyday health and welfare decisions follow the MCA framework.

• A COP3 assessment is required for applications to the Court of Protection.

• Decisions such as writing a will or engaging in litigation use specific legal tests recognised by courts and legal professionals, cited in case law

It is essential that the assessor understands which legal test applies to the decision being evaluated, as these tests are also used by judges in the Court of Protection.

A good assessment always begins with a clear understanding of exactly what decision is being considered.

Examples of decisions that may require a mental capacity assessment

• COP3 reports for Court of Protection applications

• Managing money and financial affairs

• Making an Advance Decision to Refuse Treatment

• Creating a Lasting Power of Attorney

• Health and welfare decisions

• Deciding where to live

• Deciding how care and support needs should be met

• Capacity to conduct court proceedings

• MarriageSexual relations

We collaborate with leading solicitors, financial planners and wealth management professionals across the UK. We welcome referrals from organisations and direct referrals.

We can support with:

• Drafting Lasting Power of Attorney (LPA) applications

• Acting as Certificate Providers

• Support with drafting applications for Deputyship to the Court of Protection

• Completing COP3 assessments

• Assessing Testamentary Capacity