Mental capacity—an introduction
Mental capacity—an introduction

The following Private Client guidance note provides comprehensive and up to date legal information covering:

  • Mental capacity—an introduction
  • The common law presumption of capacity
  • The statutory test for capacity
  • Assessing capacity
  • Specific capacity issues

Solicitors must consider the mental capacity of their clients in everything they do. The consideration of such capacity will occur where:

  1. there is a question as to whether a person lacks the ability to make a decision, which can range from getting married to accepting or refusing medical treatment to making a Will

  2. capacity may have an effect on a transaction to be undertaken and on third parties involved directly or indirectly

  3. there is a need to consider the involvement of third parties in the decision-making process

Everyone is entitled to make a decision whether or not that decision may be considered wrong or eccentric by others. For the most part there is no necessity to interfere in that decision-making process. However, while respecting the autonomy of a person to make decisions, English law has always recognised that there are individuals who lack the mental capacity to be held accountable for their decisions.

Historically, the law relating to capacity was to be found in a number of case law sources and in acts such as the Enduring Powers of Attorney Act 1985 and the Mental Health Act 1983. It was against this background that the Mental Capacity Act 2005 (MCA 2005) came into force on 1 October 2007. Its purpose was to introduce a new test for mental capacity and to bring the