Mental capacity is a complex issue that many individuals often take a broad brush approach towards. It is a common misconception that when an individual is deemed to have capacity they are completely unable to make decisions for themselves in respect of finances, care or any other factors ongoing in their lives.
An individual can lack capacity in one respect of their life, for example being able to manage their finances or to provide instructions in respect of litigation but have full capacity to make decisions about their care where they wish to reside and other decisions in their life.
Section 2(1) of the Mental Capacity Act 2005 (“MCA”) states that: ‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or the brain’.
The test for assessing capacity is broken down into 3 parts:
a) Is the individual unable to make a decision?
b) Is their an impairment or disturbance in the functioning of the individuals mind or brain?
c) Is the individual’s inability to make the decision because of the identified impairment or disturbance?
If all 3 above apply the individual will lack capacity to make the relevant decision in question.
However, it is important to note that just because an unwise decision is made by an individual this does not mean that they lack capacity to make that decision. Principle 3 of the Mental Capacity Act portrays that an individual has the right to make decisions that others might regard as unwise or unconventional and you cannot treat a individual as lacking capacity on this basis.
An important distinction must be made – there may be doubts about whether an individual has a lack of capacity but this must not be treated as a test of capacity.