The UK Mental Health Foundation defines mental capacity as being able to make, and communicate our own decisions. This is a very important aspect of life, and the industry we serve.
For example, did a person making a will know what they were doing when they appointed their executor. Can we legally accept their instructions to value a deceased estate?
Moreover, what is the legal position when a family member instructs us to clear a hoarded house because they believe their elderly relative ‘does not know what they are doing’? To what extent are they entitled to ask us?
What the Mental Capacity Act (MCA) Says About This
The UK government introduced the MCA act to ‘empower people aged 16 and over (who may lack the mental capacity) to make their own decisions about their care and treatment’ according to the NHS. Hence, it is there to protect their rights to govern their lives and make decisions as far as practically possible.
Those decisions extend from mundane matters like choosing what to wear, to far-reaching ones like having an operation or signing a lease. People who lack this capacity may have dementia, a severe learning disability, or a mental health illness.
However, the Act also provides for temporary / diminished mental ability as a result a stroke, reaction to an anaesthetic, or a sudden accident.
Although the NHS is at pains to point out this does not necessarily imply affected people lack the capacity to make a specific decision. For example, they may be able to make their weekly purchases, or draw cash from an ATM.
Law Is On the Side of Those with Diminished Mental Ability
We may not assume a particular person cannot make a particular decision, just because their mental capacity appears impaired. The NHS provides these guidelines to make this point:
1… We should assume they can decide for themselves, until proven to the contrary
2… We may help them make up their own minds where it is appropriate in the relationship
3… If they make an unwise decision, this does mean they have general reduced ability
4… If we make a decision on their behalf, then this must be in their best interests
5… Those in care are entitled to greatest possible freedom in terms of their basic rights
Any one of us may appoint someone to care for us and help us make decisions. However, anybody falling within the remit of the MCA Act must also have an independent advocate. This person should provide additional guidance when they have to reach important decisions.
The Act’s 2-Stage Process for Assessing Mental Capacity
Does the person have an impairment of their mind or brain, whether due to an illness, or external factors such as alcohol or drug use?
Does the impairment mean they cannot make a specific decision / class of decisions? Or on the other hand make any decisions at all. Those parameters can fluctuate, muddying the water on this one.
The Act provides this guidance on the matter:
1… Does the person understand the relevant information?
2… Can they retain that information long enough to use it?
3… Are they able to consider it as input to their decision?
Mental Ability in Practice: Wills and House Clearances
The above factors are subjective, and best assessed by competent specialists. We stay away for influencing them in our line of business. If you want to contest a will because the testator was not of a sound mind, you would have to prove they lacked mental capacity. Moreover, you would have to base this on medical evidence, and the opinion of close relatives and friends.
However, if the person were still alive – and you do not have limited power of attorney – then you could consider consulting an appropriate medical specialist. And if they advise depriving them of some or all of their liberty, you would have to apply to your local authority for a decision.
If all else fails, you could apply to the Court of Protection for authority to make decisions. The remit of this court includes financial and serious healthcare issues where there is disagreement. We would expect proof of legal authority before clearing a hoarded house on behalf of a third party.
A Gentler Way to Approach Limited Mental Capacity
It makes sense to give a trusted person a limited power of attorney over our affairs while we are still of sound mind. However, what if we do not have one, and a loved one’s mental capacity is failing perhaps from early onset Alzheimer’s?
Possibly we should gently nudge them in the direction they may need a ‘guardian angel’ some time in future, to help them reach important decisions. This is so much more pleasant – and doable – than taking them through psychological tests. Moreover it is probably also, what we would prefer for ourselves too.