I receive a lot of calls from family members and advisers touching on issues relating to mental capacity. There are numerous occasions when one may have to consider if someone has capacity or not.
“Should I register an Enduring Power of Attorney”? “My Mother is struggling with her financial affairs but I am not sure if I should be doing something or not”? “Can my Father sell his house – he has mild dementia”?
The view taken by many advisers and family members is that they can assess capacity but this is a difficult area.
The problem is that deciding if someone does or does not have capacity is principally a legal question. There may be a host of different questions that need to be considered. The factors which will need to be taken into account are often different in each instance.
By way of example, I recently acted for someone who had sufficient mental capacity to marry but not manage her own financial affairs. It is not all or nothing.
The legal test has to be set out and applied to the particular situation. In turn a doctor with the relevant expertise will need to prepare a letter or report setting out whether, in view of any relevant medical notes and examinations, the individual has capacity to take a particular step.
The decisions people make often may have significant repercussions. For instance, does someone have sufficient capacity to make lifetime gifts to friends or family? If you get it wrong, it can lead to disastrous results.
The best thing to do is to take advice and do it properly.