Frequently Asked Questions

01

Can a mental capacity assessment be carried out when they have severe acute bronchitis?

 

The Mental Capacity Act quite clearly states that if a decision can be delayed then it should be delayed. If someone is suffering from any illness that is impacting upon their capacity to make a decision then it is always best practice to delay the decision. Its all about supporting someone to make a decision.

 

02

Mental Capacity assessment for children?

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The Mental Capacity Act (2005) applies to those over the age of 16 for those under this age competency is assessed rather than capacity this is often referred to as Gillick Competency.

However.

It is possible to carry out a mental capacity assessment on children, these would usually only be carried out for deputyship reasons for the court of protection and it would usually mean the child has had an acquired brain injury or impairment to the mind or brain. This type of assessment would be based upon the balance of probabilities that the child would not gain the capacity to make the decision when they reach adulthood.

 

03

Can I get my disabled son assessed for mental capacity?

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Potentially the first question the Mental Capacity act (2005) asks is, is thee an impairments of he mind or brain? A physically disability that des not affect the mind/brain is not reason to assess capacity

Mental Capacity is decision specific, a “general assessment of capacity” should never be completed, after all the decision is important. For example the information we need to understand, retain and use to decide on whether we want tea or coffee is far simpler than the information we use to decide whether we wish to buy a new house. Two different decisions which could result in two different capacity assessments.

As there is an assumption of capacity then this would have to be more specific. Do they need to make decisions about health and welfare or finances or property?

 

 

04

Can I complete an Online mental capacity test?

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Not for capacity, as this is decision specific and as the principles state to take all practicable steps to ensure that the person can decide it would not be wise to have this online. Face to face in an environment which is comfortable and at a time which the individual feels comfortable will always support with decision making.

 

 

05

Is there a need for mental capacity to be tested on 16-year-olds?

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There may be? Does the 16-year-old have an impairment to the mind or brain which could impact on their decision making and do they have to make a decision about either health and welfare or property and financials affairs? If so, it may be appropriate to have a capacity assessment. This is not exhaustive as there are many reasons why a 16-year-old may need a capacity assessment.

 

06

What decisions should trigger a mental capacity assessment?

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Any decision where there is doubt the person has capacity to make it.

The most common assessments are based around

Capacity to make decisions relating to health

Capacity to make decisions relating to care

Capacity to Marry

Capacity to access social media

Capacity to grant lasting powers of attorney

Capacity to write or amend a Wills or Codicils

Capacity to litigate

Capacity to create a Trust

Deputyship orders (COP3)

It could be property and financial affairs, or health and welfare, these encompass a lot of different decisions. It may also be that the individual wants to make a will. There are also decisions such as whether to apply for an LPA or deputyship? If you are ever concerned that an individual is being made to make a decision, but they do not understand this then a capacity assessment is a good idea.

 

 

07

Best Interests assessment

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This is when an individual lacks capacity and they are having their liberties restricted for example they are in a care home. They must have lost their capacity to decide before having the assessment. This will find out if the individual is having their liberties deprived. Liberty is article 5 of the Human Rights Act which means freedom and decision making. Only in the most serious of cases are you allowed to deprive someone of their liberties.

 

08

Mental capacity plumb

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P= Presume capacity (just because someone has dementia or learning disabilities, or an ABI does not mean that they lack capacity)

L= Least restrictive (When you are making a decision make sure it has the least negative impact on the individual)

U = Unwise decisions (People can choose to make decisions that you may think are risky but that does not mean that they lack capacity)

M = Make every attempt to ensure that an individual can make that decision (Try everything to ensure the person can make their own choice, adapt your communication, be patient, go at a time when a person may feel more alert)

B= Best interests (If you are making a decision on somebody’s behalf make sure that it is what they would have ordinarily chose if they had the capacity to do so)

 

09

Mental capacity test for marriage

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The Mental Capacity Act (2005) does not really have provision to make decisions on Marriage, but if you are concerned that an individual lacks capacity and can’t make that decision or if there is risk of abuse then a capacity assessment can be completed for the Local Authority and Court of Protection.

 

10

What happens in a mental capacity assessment?

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A qualified assessor will ask decision specific questions in a familiar environment at a time and place of the individual’s choice. The individual will be treated with empathy and holistically. The assessor will follow the principles of the act which are noted above in PLUMB.

Our assessors are experts, it’s a conversation not a test. We want to ensure we get the very best evidence regardless of whether that evidence shows the person does or doesn’t have capacity, its not about the outcome, its about the process.

 

11

What are the 3 tests for mental capacity to make a will?

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A mental capacity assessment would be carried out bearing in mind Banks vs Goodfellow (1870) case law. Questions would be asked about

• What a will is and when it comes into effect,

• What the extent of your estate is.

• Be able to comprehend and appreciate the claims to which they ought to give effect.

• Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will

 

12

What is a mental capacity assessment?

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This is usually an in-depth conversation with a professional regarding a specific question. The assessor will have a wealth of experience of these assessments so will make it as relaxed as possible. There will be some questioning, but this is specific to a decision. Most assessments are based upon the Mental Capacity Act (2005) to have capacity an individual must be able to:

Understand the relevant information

Retain the relevant information in their mind long enough to

Use or weigh up the relevant information as part of

An effective communication of their decision

 

13

In what situation would a mental capacity assessment be done

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If an individual has an impairment to the mind or brain and must make a decision at a specific time, for example choice of where to live, who will look after their money, making a will, choice of care home.

With respect to a will a Solicitor or will writer may refer to “the golden rule”

The ‘Golden Rule’ places a requirement on a solicitor or will writer to assess whether the Testator has testamentary capacity – and if necessary, to obtain medical evidence to support this. The idea of the golden rule was explained in a case in the 1970s called Kenward v Adams ChD 29 November 1975, but which was also followed in Re Simpson [1977] 121 SJ 224, when the court held that “… the making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings.”

 

14

What is the golden rule for capacity?

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The ‘Golden Rule’ places a requirement on a solicitor or will writer to assess whether the Testator has testamentary capacity – and if necessary to obtain medical evidence to support this. The idea of the golden rule was explained in a case in the 1970s called Kenward v Adams ChD 29 November 1975, but which was also followed in Re Simpson [1977] 121 SJ 224, when the court held that “… the making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings.”

 

15

What authority do I have as a lasting power of attorney over a mental capacity assessment?

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If the LPA is for property and financial affairs and the donor has requested that the attorney acts from the moment of registration then the attorney has the authority to act from that moment in the donors “best Interests”.

If the LPA granted authority to act once the donor has lost capacity then the attorney only has authority at that moment, and this could be temporary if the donor regains capacity later on.

With respects to health and welfare lasting powers of attorney the attorney can only act if the donor is deemed to lack capacity for that specific decision.

Mental Capacity is decision specific, being deemed to lack capacity for one specific decision does not give total authority over all decisions to the attorney.

 

16

What is the acid test mental capacity?

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Stage 1 of the mental capacity act sates a person must have an impairment of the mind or brain.

Stage 2 states a person must be able to evidence they

Understand the relevant information

Can retain this information

Can use or weigh up the information

Can communicate an effective decision

 

 

17

Lacking mental capacity at home who and what care can you get?

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In this situation it may be best to have a full adult social care assessment from your local authority if you have assets less than 23,250 or if your are above this threshold (commonly referred to as a self-funder) then you have a choice, you ca contact Nellie supports. We can help.

 

18

Out of character and displayed impaired mental capacity what action would you take?

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Contact a GP or seek medical support immediately. Changes in behaviour could be a sign of an illness or a UTI or a stroke or dementia

 

19

What document is vital to understanding mental capacity practice?

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The Mental Capacity Act (2005) Code of Practice a must read for people needing to understand capacity.

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20

How long is a test valid for?

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The assessment is decision specific and time specific. Usually a test is carried out and the decision is made at the same time to ensure that the decision is valid and reliable. However for logistical reasons this cannot always be the case, the decision should be made as soon as possible following the assessment, any changes in the persons capacity could nullify the assessment.

 

21

4 stages of mental capacity assessment

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Understand – does the individual understand the information relevant to the decision.

Retain – Can the individual retain that information for long enough to

Weigh up – Can the person weigh up or use that information to make an informed decision.

Communicate – Can the individual communicate an effective decision which relies on being able to complete all three of the above.

 

22

How many stages are there in a mental capacity assessment?

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2 stages

5 principles and

4 areas they have to satisfy

2 stage is

1. Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain?

2. If so, is the impairment or disturbance sufficient that the person lacks the capacity to make that decision?

5 Principles

1. Assume the person has the capacity unless proved otherwise.

2. Do not treat people as incapable of making a decision unless you have tried all practicable steps to help them.

3. Do not treat someone as incapable of making a decision because their decisions may seem unwise to you.

4. Always do things or take decisions for people without capacity in their best interest.

5. Before doing something to someone or making a decision on their behalf, consider whether you could achieve the outcome in a less restrictive way.

Can they satisfy the 4 areas?

1. Understand the information relevant to the decision.

2. Retain the information long enough to enable the making of a decision.

3. Use or weigh that information as part of the process of making the decision.

4. Communicate in any way.

 

 

23

Virtual reality mental capacity assessments

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Face to Face Consultations are always going to be best practice, However, in those instances where it is not feasible, we offer a safe, secure and proffessional online consultation service vie our Telehealth service.

You can read more about our telehealth service here

 

24

Mental capacity assessment in relation to the accommodation

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If the individual has an impairment to the mind or brain and they have to make a decision about where they want to live and you are concerned that they can’t make that decision then it is best that a capacity assessment is carried out, there will be specific questions asked about how they manage their property and if they are aware of risks and could include their capacity to enter into a contract. 

The assessment will determine if they have the capacity to choose their accommodation. 

 

25

Which condition can instigate amentalcapacity assessment?

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There are numerous conditions that may impact on an individual’s capacity this is not an exhaustive list:

Dementia/ which encompasses all forms of dementia from Alzheimer’s to Vascular to Korsakoff’s syndrome.

An acquired brain injury, this could be caused by an accident or by trauma in birth.

Psychosis or depressive experiences

Drug induced psychosis

Childhood trauma

Learning disabilities

A stroke

There are numerous conditions which may cause an impairment to the mind or brain, if in doubt regarding an individual’s capacity then seek support.

 

27

Can the certificate provider also act as a witness to signatures on the lasting power of attorney

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Yes, our Social workers can act as both certificate provider and witness signatures on condition they are not acting as the attorney. 

 

28

Can a family member, for example, my brother act as the certificate provider"

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We always recommend a professional act as certificate provider; that way there is some record of your decision making. Our Certificate provider service comes with a short report outlining the evidence against the standard questions the Office of PublicGuardian regularly ask when an LPA is contested. Giving you peace of mind. 

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29.

After carrying out a mental capacity assessment what steps should we take where a person has been identified as having the capacity?

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As the person has capacity it is down to that individual to make their own decisions. This doesn’t mean to say they cannot be supported in their decision making, we all need advice and support from time to time.

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It is worth bearing in mind however that we are all permitted to make what others may see as “unwise decisions” 

If you are still not convinced that they do have capacity you can appeal or arrange for an independent capacity assessment.