When making your Will and / or your Powers of Attorney (LPA) you need to have “Mental Capacity”. That’s great but what is it and what do YOU need to know.
Simply it is being able to make decisions for yourself. To have capacity a person must be able to:
- understand the information that is relevant to the decision you want to make
- retain the information long enough to be able to make the decision
- weigh up the information available to make the decision
- communicate their decision by any possible means, including talking, using sign language, or through simple muscle movements such as blinking an eye or squeezing a hand.
When making your Will and / or your LPA the key thing is that you only need to have capacity when you are giving instruction and signing. The fact that at other times you do not have capacity is irrelevant. People who have dementia know that they have good days and some not so good days.
As a professional Will Writer and someone who is trained to assess someone’s mental capacity I am continually making assessments on peoples mental capacity during the meeting to ensure that the person has the capacity to make those decisions.
The principles of the Mental Capacity Act
The Mental Capacity Act (MCA) is based on five key principles which are:
- Every adult has the right to make decisions for themselves. It must be assumed that they are able to make their own decisions, unless it has been shown otherwise.
- Every adult has the right to be supported to make their own decisions. All reasonable help and support should be given to assist a person to make their own decisions and communicate those decisions, before it can be assumed that they have lost capacity.
- Every adult has the right to make decisions that may appear to be unwise or strange to others.
- If a person lacks capacity, any decisions taken on their behalf must be in their best interests.
- If a person lacks capacity, any decisions taken on their behalf must be the option least restrictive to their rights and freedoms.
It must always be assumed that everyone is able to make a decision for themselves, until it is proven that they cannot. The law says that the only way to establish this is to do a test or assessment to find out whether a person has the ability to make a particular decision at a particular time.
Fortunately, I have done the training to do a basic Mental Capacity check which covers the vast majority of people. If there is ANY doubt then we refer the matter to the Doctors who have a greater in depth knowledge. The downside is that this comes at a cost. Ordinarily in the £100 – 150 region as a minimum.
A recent example of where we followed the Mental Capacity principles is an adult female who was severely disabled and spoke through an electronic voice. All of the people who were providing care for her decided that they needed an LPA to help run her life. Following an initial consultation we decided that from the responses we were getting that the client did have Mental Capacity. The medical practitioner agreed with us so the client was able to direct who they wanted as Attorneys.
This may be difficult for other people to understand and accept but just because the person looks / sounds disabled it doesn’t mean that they cannot make decisions about their own life.
Be reassured that when we meet our clients, assessing their Mental capacity is one of our key priorities.