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Mental Capacity Affecting Ability to Make Decisions

August 10, 2021 By Avery Associates

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.

mental capacity

Early Onset of Alzheimers: ‘Leveled Eggs’ BY CC 4.0

The Act’s 2-Stage Process for Assessing Mental Capacity

FIRST

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?

SECOND

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. Read Avery Associates reviews here.

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.

Related

Filed Under: House Clearance Tagged With: assistance, decisions, mental capacity, mental capacity act, sound mind, support

Our House Clearance Services

We provide a full house clearance and property management solution:

  • We clear hoarded houses, regardless how big or how cluttered
  • We clear all types and sizes of property, irrespective of location, or access is restricted or where parking is difficult or not available.
  • We can help avoid water damage by draining the central heating system.
  • We can secure the property and change the locks.
  • We can reinstate the gardens and maintain them whilst the property is empty.
  • We can provide 24 hour security to eliminate the risk of squatting or unlawful occupation.

As well normal house clearances we specialise in clutter clearance and we can clear a hoarded house which may contain years of accumulated possessions, or which have abnormal amounts of general household items, sometimes as a result of compulsive hoarding syndrome.

Equally we can help to clear a property where the occupants were previously unwell and unable to care for themselves or their property which sometimes results in insanitary, dangerous or just plain unpleasant conditions.

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Client Reviews

Margaret Campbell
Jun 24, 2022
 by Margaret Campbell on Avery Associates
Amazing Service and Support

Hello Pam / Jeffrey, As requested, sorry it is late …. I forgot☹️ I used Avery Associates for probate content valuation, clearance... Read More

Susan Arm******
Jun 2, 2022
 by Susan Arm****** on Avery Associates
Respectful Probate Valuation

Mr Avery did a wonderful job assessing the household contents for probate and I very much appreciate his respectful approach while valuing the items at... Read More

Your very welcome Susan

Patrick Macavoy
May 20, 2022
 by Patrick Macavoy on Avery Associates
A Seamless Experience

I had my late mother's flat to clear out. The contact with AA was a pleasure from day one, starting with the receptionist. Jeffrey then came out to look... Read More

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Avery Associates
291 Mitcham Rd
Tooting SW179JQ

Tel: 0800 567 7769 or 0208 640 0044

Services provided throughout London and the Home Counties. View our clearance case studies.


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