A Beginners Guide to Capacity

Posted: 26th March 2019

My name is Charlotte and I am a brand new addition to the EMG family. I joined the Court of Protection Health and Welfare team in February, and what a month it’s been! My main role involves working alongside Eilish Ferry-Kennington on matters where an individual lacks capacity to make decisions for themselves. As a newbie, I’ve been learning the ropes and I really wanted to share a few hints and tips to help you understand mental capacity and how it works in practice. It’s as easy as A, B C (…and d, e, f & g!)


Accepting that someone close to you might lack the mental capacity to make decisions for themselves is a stage of your life that can catch you by surprise. The law refers to these individuals as ‘P’, but to you and I, P is our parent, child or friend which can make this process an incredibly overwhelming time. At EMG we’re here to help you take the first steps to ensure that you feel able to support your loved ones, should the time come.

Best interests

The best interests principle in the Mental Capacity Act 2005 (MCA) states that any act done or decision made on behalf of an adult lacking capacity must be made in their best interests. This only applies to decisions where P has been assessed to lack capacity to decide for themselves. This can sound quite daunting, however the MCA sets out a checklist to help you methodically work through the steps. You can find the checklist here. When there is a disagreement about whether a decision is in P’s best interests, a application can be made to the Court of Protection.

Consideration & Consultation!

Consideration should be made towards P’s current wishes and those that they expressed before losing capacity. P’s wishes, feelings, beliefs and values are to be considered but are not determinative and consultation must also be given to loved ones, carers and people who have an interest in P’s welfare.

Decision specific

The MCA states that a person lacks capacity if they’re unable to make a specific decision, at a specific time. They can include decisions about finances, medical treatment, care, residence and sex. You can’t assume that someone doesn’t have the capacity to decide where to live simply because they have been assessed to lack capacity to make decisions about their care needs.

Everyone is different…

Respect unwise decisions. What you think is a good decision, does not mean that your loved one does! Unwise decisions still have merit and you cannot disregard someone’s beliefs simply because you have a different opinion. An unwise decision does not mean that someone lacks capacity!

Functional test

There is a two stage test to conduct in order to decide whether an individual has capacity to make a particular decision.

Stage 1: Is there an impairment of, or disturbance in the functioning of a person’s mind or brain? This could be due to long-term conditions such as mental illness, dementia or more temporary state such the effects of drugs or alcohol. That being said, every adult has the right to make their own decisions and must be assumed to have capacity to do so unless proven otherwise. You cannot assume that someone lacks capacity just because they have a particular medical condition or disability. This is where we introduce…

Stage 2: Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision? The MCA states that a person is unable to make their own decision if they cannot do one or more of the following four things:

  • Understand information given to them
  • Retain that information long enough to be able to make the decision
  • Weigh up the information available to make the decision
  • Communicate their decision.

Give us a shout…

The idea of meeting with a solicitor can be quite daunting but it doesn’t need to be. If you would like to pop in for an informal chat then head over to our contact page where you can reach out to myself or Eilish. We’re always here to welcome you with a cuppa and a friendly face!