Guidance on mental capacity – FAQs

What is mental capacity?

Mental capacity refers to whether a person is able to understand and make a decision. It is specific to both the time the decision is made and the particular decision being taken.

Why does mental capacity matter?

Certain decisions require mental capacity, including entering into contracts, buying or selling property, giving instructions for a house sale, taking court action to recover assets, or participating in divorce proceedings. If a person does not understand the implications of what they are doing, they cannot create a binding agreement. In some situations, others involved may ask for an assessment of capacity before proceeding.

Is capacity always the same?

No. Capacity can fluctuate. Illness, infections, or medical procedures such as the use of general anaesthetic can temporarily affect a person’s ability to make decisions. Some people may be able to make decisions at certain times of the day but not others. Capacity must always be considered in relation to the specific decision being made at that time.

Does making an unwise decision mean someone lacks capacity?

No. Making a decision that others may see as unwise does not automatically mean a person lacks mental capacity.

What are the key principles of the Mental Capacity Act 2005?

1) Presumption of capacity: The core assumption is that you are deemed to have capacity to make a decision unless there is evidence you do not understand the issues.

2) Supporting individuals to make their own decisions: Attempts must be made to help an individual to participate in the decision-making process. Capacity is assessed on a time and decision specific basis and so – you may understand that you would like to buy presents for particular people at Christmas, but do you understand the implications of such expenditure on your overall wealth? You may prefer to live in your home for as long as you are able to, but do you understand the risks that can be associated with that decision?

Capacity can fluctuate – for example, a urinary tract infection can impact on a person’s capacity to make decisions until the infection has been cleared. Post operative problems can arise with older people where general anaesthetics have been given. With many, this may be temporary confusion which clears. Some people can make decisions in the morning but not in the afternoon and vice versa.

3) Freedom to make unwise decisions: An unwise decision does not mean you lack capacity necessarily.

4) Acting in your best interests: If someone has to make a decision for you, they must make it in your best interests, considering your views (past and present).

5) Least restrictive option: The choice must be the least restrictive of your options. For example, if you became less mobile, enabling use of a wheelchair would be a less restrictive option than being bed-bound.

Selling your house if you have other money will stop you returning home if your health recovers, so perhaps renting it out as an interim measure, would be more appropriate.

How is mental capacity assessed?

Before trying to assess someone’s capacity, you must understand the decisions that need to be made. In most cases there is a legal test but the opinions and views of doctors on the ability of a person to process the information to make the legal decision is important.

Capacity can be complex, but in some cases surprisingly easy to resolve. The fact that someone is blind or has hearing difficulties does not mean they do not have capacity to make decisions.

When does mental capacity need to be considered?

Mental capacity is central to many decisions involving local authorities, doctors and the courts. It is often an essential part of decision‑making when supporting someone who may be vulnerable.