Expert Mental Capacity Assessments

What is Mental Capacity?

Mental capacity refers to an individual’s ability to understand, retain, and use information to make decisions that impact on their life. Assessment of mental capacity is always in relation to a specific decision: a person may have mental capacity to make one particular decision but not for another type of decision. Often this is dependent on the complexity and amount of information that a person needs to understand in order to make that decision.

At TSF, we use the term “threshold of understanding” to set out what a person might need to understand in order to make the specific decision. As well as understanding relevant information, a person will need to be able to consider and weigh the pros and cons of different options or of making the decision, and the consequences and risks attached to it. A person’s mental capacity can fluctuate so it is important to assess someone at a time when they are most likely to be able to make the decision in question, where this is possible, particularly for “one off” decisions.

The Importance of Mental Capacity Assessments

It should always be assumed that a person has capacity to make a decision. This is the starting point of any mental capacity assessment. However, where there is a question mark over a person’s ability to make a specific decision, due to them not being able to understand, retain, use or weigh relevant information or communicate their decision, and where that person has a cognitive impairment (this does not have to be a diagnosed impairment), a mental capacity assessment should be undertaken to ascertain whether the person is able to make the decision in question.

If the outcome of the assessment is that the person has capacity to make the decision, our reports will evidence this and the person can proceed with making the decision. If the outcome of the assessment is that the person lacks capacity to make the decision in question, then our reports can then be used to evidence an outcome of lack of capacity. In such circumstances, if proceeding with the decision in question, this would need to be made in the person’s best interests.

If it is found that a person does not have capacity to act in a specific role, such as acting as an executor or trustee, then a legal professional can assist with appointing someone else to carry out this role. If the person is not able to make a Will or manage their own finances, then it may be that an application to the Court of Protection is necessary so that a statutory Will can be made or to appoint a Deputy to manage the person’s finances in their best interests. If the person is not able to make a decision about an equity release mortgage but has a valid LPA, then their attorney would be able to make this decision on their behalf. If a person lacks capacity to litigate in legal proceedings, then our assessment would provide evidence that would enable a Litigation Friend to be appointed to ligate on behalf of that person.