What is Mental Capacity?

Posted
AuthorShivani Pabari

Mental Capacity is the ability to make and communicate a particular decision. You must understand the decision you need to make, why you need to make it and the likely outcome of the decision. At any time you may be able to make decisions about some things but not others. A person may be able to make simple decisions such as what to wear, or where to shop, but be unable to make more complicated decisions such as preparing a Will or putting Lasting Powers of Attorney (LPAs) in place.

The ability to make decisions can change on a day to day basis and it is important to always give consideration to mental capacity.

Solicitors have a professional duty to ensure that all clients they are acting on behalf of have the mental capacity to instruct them on all matters.

If someone does not have mental capacity, it could be due to various factors, including but not limited to impairment due to Alzheimer’s, Dementia or Autism. Please note that being diagnosed with one of these conditions does not mean you do not have mental capacity but it may prompt you to make or review a Will and prepare LPAs before the condition deteriorates and prevents you from being able to make such decisions or prepare such documents.

Our solicitors at Johnson Astills specialise in Wills and LPAs and are experts in establishing capacity. To instruct a solicitor to prepare your Will or LPAs means that your wishes can be discussed in detail and documents prepared to that effect, to ensure that your wishes are achieved.

If you instruct a solicitor to prepare your Will or LPAs then that solicitor must be sure that you understand. If a solicitor is in doubt, they are able to ask a medical professional to carry out a Mental Capacity Assessment to determine a clients’ capacity to prepare a Will or LPAs.

What happens if someone I know does not have Mental Capacity?

If someone you know does not have mental capacity, our solicitors at Johnson Astills can assist in making an application to the Court of Protection for a Deputyship Order. Deputyship provides legal authority to make decisions and act on your family member’s behalf. Once in place this would allow the appointed deputy to be able to manage the finances of the person who does not have mental capacity and make financial decisions on their behalf.

How Can We Help?

Here at Johnson Astills, our solicitors can assist with preparing Wills and LPAs on your behalf, they can also assist with making applications for Deputyship. In the event that there is concern surrounding mental capacity, we can obtain the relevant medical report from a medical professional before advising as to the options available.

Should you wish to prepare a Will or LPAs or discuss any concerns relating to mental capacity further, please feel free to call our expert solicitors at Johnson Astills who would be pleased to assist you with this. You can call us at our office in Leicester or our office in Loughborough. Alternatively, you may prefer to email us at legal@johnsonastills.com or fill in our enquiry form.

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