Capacity—housing and care
Produced in partnership with Rebecca Sharp of RJR Legal Ltd
Capacity—housing and care

The following Local Government practice note Produced in partnership with Rebecca Sharp of RJR Legal Ltd provides comprehensive and up to date legal information covering:

  • Capacity—housing and care
  • Presumption of capacity for adults
  • How capacity is determined
  • Lack of capacity must relate to a particular decision
  • Ability to rationalise and capacity
  • Best interests
  • Working with and caring for those without capacity
  • Protection for decision makers
  • Capacity and Homelessness
  • Court proceedings

Presumption of capacity for adults

Section 1(2) of the Mental Capacity Act 2005 (MCA 2005) creates a presumption of capacity for adults. In the absence of proof to the contrary, such a person is assumed to retain their capacity to make informed decisions. The standard of proof is on the balance of probabilities (MCA 2005, s 2(4)). Where an adult has been found to lack capacity to make an informed decision concerning a particular question, they are then presumed to continue to lack capacity in relation to that matter until it is established that capacity has been regained. It is important that practitioners remember that capacity to make decisions are both time and decision specific therefore if there is a different question being asked you should not presume that the adult lacks capacity to make that decision. See Practice Note: Mental capacity—an introduction.

How capacity is determined

The principles that govern the determination of capacity are set out in MCA 2005, s 1:

  1. a person must be assumed to have capacity unless it is established that they lack it

  2. a person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success

  3. a person is not to be treated as unable to make a decision merely because they make an unwise one

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