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Mental Capacity to Contract
Whether you require capacity to contract assessments for business transactions, legal proceedings, or personal decision-making, our team is here to support you. We provide detailed assessment reports that serve as valuable resources in navigating the complexities of contractual obligations.
Why is a mental capacity assessment needed to agree to a contract
It is important to ensure that you have a clear understanding of your mental capacity when entering into any type of agreement or contract. Our team at Nellie Supports can assist you with expert assessment and guidance, regardless of the scenario. From agreeing to a CAF (conditional fee agreement) with respect to No-Win No-Fee arrangements to signing contracts for purchasing franchises or working with a driving instructor, we are here to provide valuable insight and support every step of the way. Our goal is to help you make informed decisions and avoid any potential legal complications.
Mental capacity assessments play a crucial role in safeguarding the rights of vulnerable individuals, such as those with cognitive impairments, mental health conditions, or elderly individuals. These assessments help ensure that their interests are protected and that they are not taken advantage of in contractual agreements
Your Questions Answered
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What does the law say?
The law states that individuals who enter into a contract must have the capacity to enter into a contract, otherwise it is voidable. Adults who have full capacity are able to enter into contracts and enforce them at law (unless they are illegal contracts).
The over-arching legislation and test for capacity is found in the Mental Capacity Act (2005) however, assessors also need to apply speciifc ase law when it comes to capacity to contract. Thsi case law is laid down in Fehily v Atkinson [2016] EWHC 3069 (Ch) whereby the High Court explained that a person should have the ability to understand the informaiotn within a contract and although help might be needed to understand the transaction, this does not prevent the person having the capacity to understand it.
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What to expect in a mental capacity assessment to buy, sell or transfer a property?
Our assessments usually take around an hour, and our friendly, experienced social workers do their best to make sure it's a comfortable and relaxed experience. We're accredited expert mental capacity assessors, so you're in good hands.
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What happens if the outcome is that you do have mental capacity?
If our mental capacity assessment determines that you have the capacity to buy, sell, or transfer your property, we can provide a report in accordance with the Mental Capacity Act (2005) to assist your solicitor in completing the process, this could include additonal assessments such as a capacity to litigate to ensure a litigation friend is appointed.
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Who can complete a mental capacity assessment?
When it comes to a mental capacity assessment for the Court of Protection, a registered health or social care professional must complete the mental capacity assessment and corresponding COP3 report; that's why all of our mental capacity assessors are registered, qualified Social Workers.
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Can we complete video-link or face-to-face mental capacity assessments?
We can visit you in your own home or any other suitable space you feel most comfortable and at a time of your choosing. In those instances where face-to-face mental capacity assessments aren't viable, we offer a fully secure video-link mental capacity assessment service. With the implementation of the Mental Capacity Amendment Bill (2019), we continue to provide video-link assessments, albeit as a last option and with a valid reason, duly recorded as evidence within our court-compliant reports
Accreditations
Social Work England is a specialist body taking a new approach to regulating social workers in their vital roles. All of our Social Workers are registered with Social Work England for your peace of mind.
Our assessors are accredited Montreal Cognitive Assessment (MoCA) assessors with specific experience in completing capacity assessments and specialist reports.
All of our assessors have undergone extra training to become accredited financial vulnerability experts according to Lichtenberg standards, so they can provide even more detailed reports on mental capacity.
CASE STUDY
Unfortunately, John suffered a serious brain injury in a car accident. Now, he's considering taking legal action to seek compensation, and he needs to sign a Conditional Fee Agreement (CAF) with a solicitor. To ensure that John has the mental capacity to enter into this legal agreement, the solicitor requests a capacity assessment. John decided to arrange the assessment through Nellie Supports after reading through our reviews online.
Since the accident, Sarah has been there for John every step of the way as his devoted mother and advocate. Together, they're exploring the possibility of taking legal action to help John receive the compensation he deserves for his injuries. They understand the importance of ensuring John's capacity to contract and make legal decisions.
Recognising the urgency of the situation, Nellie Supports quickly arranges an assessment for John with one of their experienced mental capacity assessors.
During the assessment, the Social Worker spends time getting to know John and understanding his unique situation. They have open and friendly conversations, exploring John's mental capacity to enter into a contract and his understanding of the CAF.
Following a comprehensive assessment, the Social Worker was able to deliver heartening news: John has the capacity to contract. Despite the challenges posed by his brain injury, John demonstrates a solid grasp of the contract information and comprehends the financial implications of the no-win no, fee arrangement.
Our Social Worker also noted that while John may benefit from some guidance and support along the way, his ability to recognise when he needs help and seek advice remained intact. John is aware of his limitations and actively involves his mother, Sarah, and the solicitor in the decision-making process to ensure he fully understands the terms and impact of the legal agreement.
Armed with the Nellie Supports assessment report, which confirms John's capacity to contract, Sarah and John shared the good news with their solicitor. The solicitor, recognising the importance of further assessments, requested additional assessment regarding John's capacity to manage the property and financial affairs, as well as a capacity to litigate assessment.
Ensuring that John has the necessary capacity to make decisions regarding his financial matters and to effectively participate in the litigation process and reduce any further delays.
With the compassionate assessment conducted by Nellie Supports, it was established that John has the mental capacity to enter into a contract, specifically the Conditional Fee Agreement. This empowers him to pursue his legal case with confidence. Furthermore, upon the solicitor's request, additional assessments regarding John's capacity to manage a property and financial affairs and his capacity to litigate will be conducted. These assessments will provide a comprehensive understanding of John's capacity across different aspects of his legal affairs. Assessments like these are crucial in protecting individuals' rights and ensuring they
Frequently Asked Questions
What are the requirements for capacity to contract?
1. Mental capacity is required for individuals to recognize, obtain, comprehend, and retain relevant information, as well as to consider and weigh that information when making decisions.
2. Capacity for decision-making can vary depending on the type of decision.
3. Capacity should be evaluated at the specific time the decision was made, as it may fluctuate over time.
4. The crucial factor is whether the person possesses the ability to understand the transaction, regardless of whether they actually understood it.
5. While assistance might be necessary to comprehend the transaction, it does not negate the person's capacity to understand it. They should have the awareness to recognize the need for advice, the capability to engage an appropriate advisor, and the capacity to comprehend and make decisions based on that advice.
How long does a capacity assessment take?
When determining the amount of time required to assess an individual's capacity to make decisions, the complexity of the decisions being assessed and the subject's cognitive impairment are both critical factors. Typically, one assessment session can be expected to last between 60-90 minutes for a single decision.
Capacity to contract (minors)
If you're under 18, entering into contracts may come with special considerations and rights. While minors generally lack the full legal capacity to enter into binding agreements, there are certain circumstances where they can still be party to a contract. However, it is crucial for minors to understand their rights and the implications of their actions before signing any contractual documents.
One important aspect to note is that contracts entered into by minors are generally considered voidable.
This means that if a minor decides they no longer wish to be bound by the terms of the contract, they have the option to terminate it without incurring significant legal consequences. This protection exists to safeguard minors from entering into agreements that they may not fully comprehend or that may not be in their best interest.
What are the 4 questions for mental capacity?
The MCA says that a person is unable to make their own decision if they cannot do one or more of the following four things:
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Understand information given to them
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Retain that information long enough to be able to make the decision
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Weigh up the information available to make the decision
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Communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.
Can a solicitor complete a mental capacity assessment?
When it comes to assessing an individual's mental capacity, there are various professionals who can fulfill the role of assessors. This diverse range of assessors may include family members, care workers, nurses, doctors, or social workers. These individuals often have firsthand knowledge and regular interactions with the person in question, which can provide valuable insights into their mental functioning and decision-making abilities.
In more complex or legally significant cases, it may be advisable to engage the services of an expert assessor. This expert assessor is typically recommended by a solicitor who specializes in the relevant legal area. Social workers, in particular, are often called upon to serve as expert assessors due to their expertise in assessing capacity and understanding the legal framework surrounding mental capacity assessments.
Who can assess mental capacity?
In accordance with governent guidelines appropriate assessors may include:
Medical practitioners
Social care professionals
It is imperative for these assessors to possess relevant professional qualifications, undergo training, and demonstrate practical experience that reflects their ability to assess capacity in accordance with the Mental Capacity Act 2005.
At Nellie Supports, all our Registered Social Workers are fully equipped as experienced assessors. In addition to meeting the standard requirements, they have received specialised training in Montreal Cognitive Assessments, ACE2, and handling cases involving financial vulnerability. This ensures that our Social Workers surpass the necessary qualifications for conducting assessments