You may have heard the term ‘mental capacity’ floating around, however may have been unsure as to its meaning. You may also have been told that you could lose capacity temporarily or permanently. Capacity plays an important part when it comes to preparing Wills and dealing with your affairs. We look at the legal definition of capacity and consider some of the things that cause temporary capacity issues.
The two relevant sections of the Mental Capacity Act 2005 to take into consideration when thinking about temporary capacity issues are sections 2 and 3.
Section 2 of the Mental Capacity Act 2005 sets out that a person lacks capacity in relation to a matter if at the time where capacity is required, that person is unable to make a decision for themselves because of an impairment or disturbance in the functioning of their mind or brain. Section 2 of the Mental Capacity Act 2005 also sets out that it does not matter whether the impairment or disturbance to their mind or brain is permanent or temporary.
Section 3 of the Mental Capacity Act 2005 sets out that a person is considered to be unable to make a decision for themselves where they are unable to:
- understand the information relevant to the decision to be made;
- retain the relevant information to the decision to be made;
- to use of weigh the relevant information as part of the process for making the decision; or communicate their decision, be it by speaking, using sign language or any other means.
From the NHS website (www.nhs.uk), capacity is defined as being ‘the ability to use and understand information to make a decision, and communicate any decision made. A person lacks capacity if their mind is impaired or disturbed in some way, which means they’re unable to make a decision at that time’.
In consideration of the above definition of capacity, we look at some of the things that may cause a temporary lack of capacity.
Consciousness – the state of being aware of and responsive to your surroundings
Being unconscious or barely conscious may cause a temporary lack of capacity, this is because in this state of mind, your awareness and response to your surroundings is significantly less than on an ordinary day, or in more severe cases, you have no awareness of your surroundings and are unable to respond to the same. Unconsciousness may be caused by an accident, as a result of an illness or a treatment for that illness, being under anaesthetic, or even being under the influence of alcohol or drugs.
Short Term Memory loss- where you forget things you heard, did or saw recently
Short term memory loss can be caused by a number of different factors. To name a few examples, some of the factors that may cause short term memory loss include:
- a lack of oxygen to the brain;
- alcohol or drug use;
- an injury to, or trauma to the head;
- anxiety or depression;
- stress; or
Mild Cognitive Impairment- the stage between normal aging and dementia
The symptoms of Mild Cognitive Impairment include often forgetting things, losing your train of thought, having trouble remembering your ordinary routines such as finding you way to the shops, feeling anxious and overwhelmed by making decisions, or becoming more impulsive.
Delirium- sudden confusion
Sudden confusion can be caused by a range of factors. Some of the factors that can cause sudden confusion include:
- an infection, for example a urinary tract infection. Urinary tract infections are a common cause in elderly people or people with dementia. A more serious urinary tract infection can also cause pain. The level of pain combined with sudden confusion can also cause temporary capacity issues;
- alcohol or drug misuse;
- some types of prescriptive medicine can also cause sudden confusion;
- a severe asthma attack; or
- low blood sugar level in people with diabetes.
So why is all this important?
There are a number of legal requirements that have to be satisfied in order to prepare a valid Will in the United Kingdom. One of those requirements is that at the time of making the Will, the person making the Will must have had capacity. It is so important to ensure that at the time of making the Will, the person who made the Will had capacity in order to mitigate any future claims arising against the estate after passing and ensure that the estate is distributed in accordance with the wishes of the person creating the Will.
If there are any doubts as to a person’s capacity, the individual should be formally assessed by someone who has the appropriate skills to do so, such as a doctor or other medical professional. If you have doubts as to a client’s capacity, you may wish to consider the capacity test set out in the Mental Capacity Act 2005:
- Does the person have an impairment of their mind or brain, as a result of an illness, or external factors such as alcohol or drug use?
- Does the impairment mean the person is unable to make a specific decision when they need to?
In the event that you lose capacity, temporarily or permanently, you might wish to appoint an attorney, or attorneys to make decisions about your finance and property, and your health and welfare by way of a Lasting Power of Attorney. The Lasting Power of Attorneys will give your appointed attorneys the power to manage your property and financial affairs, and make any health and welfare decisions where you lack capacity to do so. You should always appoint attorneys that you trust to act on your behalf.
The application for putting in place a Lasting Power of Attorney for financial and property affairs asks when you would like your attorneys to make decisions. There is an option to give your attorneys this power only when you do not have mental capacity. However, it should be noted that this is more restrictive as each time your attorneys try to use the Lasting Power of Attorney they might be asked to prove that you do not have capacity. The Lasting Power of Attorney for health and welfare can only be used when you lack capacity to make decisions about your health and welfare.
We offer a free initial consultation to discuss your Lasting Powers of Attorney. If you would like a free initial consultation, please contact firstname.lastname@example.org or call and speak to a member of the Wills & Probate department on 01753 486 777.