The UK GDPR does not contain specific requirements on capacity to consent but clearly an individual must have capacity if they are to give informed consent. Generally, you can assume that adults have the capacity to consent unless you have reason to believe otherwise.

Family analysis: The High Court was presented with an application for a declaration of non-recognition of a Muslim marriage and a petition for nullity. The parties were married in Pakistan under Sharia law in June 2013. The applicant sought to argue, relying on two expert reports, that she did not have capacity to consent to marriage at the time. The court had to consider the issue of her capacity and then consider whether to make a declaration of non-recognition, or alternatively annul the marriage. The High Court refused the applications as it considered, on the facts of this case, the applicant had capacity to consent at the relevant time. The marriage was therefore valid under English law at its formation. Even if he had formed the opposite view, Mr Justice Mostyn made clear the court would still not have made a declaration under the court’s inherent jurisdiction as he was prevented by statute. Tahmina Rahman, barrister at 1GC Family, considers the case.

Enduring powers of attorney Although it has not been possible to create an enduring power of attorney (EPA) since 1 October 2007 when the Enduring Powers of Attorney Act 1985 (EPAA 1985) was repealed by the Mental Capacity Act 2005 (MCA 2005), EPAs created before that date will not be revoked by the subsequent mental incapacity of the donor but remain available for use by the attorneys subject to being registered with the Office of the Public Guardian. Questions may still arise concerning the issue of the necessary capacity to create or revoke an EPA which differs from that required to create or revoke a lasting power of attorney (LPA), and particularly the issue of the donor's capacity at the time that the EPA was executed. The common law presumption of capacity Whilst an individual must have had capacity at the time that the EPA was created, EPAA 1985 failed to specify the capacity required to create a valid EPA so it was necessary to rely on the common law presumption of capacity.

FORTHCOMING CHANGE: Further to the Government's response to the Ministry of Justice’s and Office of the Public Guardian (OPG)’s consultation Modernising Lasting Powers of Attorney, the Powers of Attorney Bill received Royal Assent on 18 September 2023, becoming the Powers of Attorney Act 2023 (PAA 2023). When it comes into force, PAA 2023 will introduce changes to the Mental Capacity Act 2005 (MCA 2005) to create a more modern lasting power of attorney (LPA) service. The changes will include: (i) introducing regulations to allow those involved in making an LPA to select whether to sign the LPA digitally or on paper; (ii) removing the ability for attorneys to register an LPA so that only the donor will be permitted to register; (iii) introducing regulations governing identification verification requirements in relation to registration applications; (iv) providing for a single route for registration objections to the OPG and widening the group of people who can lodge an objection to include third parties and not just those named in the LPA; and (v) making the notification

When advising an elderly or vulnerable individual on any aspect of litigation, it is very important to consider whether they have capacity to litigate. A party to litigation who lacks the capacity to conduct the proceedings is a person lacking capacity within the definition of the Mental Capacity Act 2005 (MCA 2005) and, since 1 October 2007, is known as a 'protected party'. Where a claim is made by or on behalf of a protected party or against a protected party, no settlement, compromise or payment and no acceptance of money paid into court is valid, so far as it relates to the claim by, on behalf of or against that person, without the approval of the court. Principles of capacity under MCA 2005 Before considering the specific rules and case law relating to capacity to litigate, it is worth considering the relevant general principles of capacity under MCA 2005: • MCA 2005, s 1(2) states that a person is assumed to have capacity unless it is established that they lack capacity. There is therefore a burden of proof

This Practice Note considers the approach taken by the family courts in relation to issues of capacity and how capacity may be assessed, including expert evidence. In the context of family proceedings, capacity may be relevant as to both capacity to litigate and to compromise proceedings, including a consent order. It is primarily concerned with issues as to the capacity of an adult, or where a child aged 16–17 is the subject of the proceedings (or a party to the proceedings) and is likely to lack relevant decision making capacity at age 18. In relation to the representation of children, see also Practice Note: Children as parties to public law proceedings. Wider considerations as to capacity and family relationships are considered in the Practice Note: Capacity to marry, cohabit and have sexual relations. In Richardson-Ruhan v Ruhan, Mostyn J said that the capacity to conduct proceedings does not depend on whether the party receives legal advice (good or bad), as if the party would be capable of making the necessary decisions with the benefit of advice

Mental capacity is the ability to perform a specific juristic act by understanding and making a decision to do something that has legal consequences such as to make a Will, a power of attorney or a gift or to provide consent for something. Lack of mental capacity is the inability to do something or to provide consent for something by reason of a mental disorder or disability. This lack of capacity may well fluctuate. It will also vary according to the function that requires the decision or consent and for this reason, mental capacity is referred to as being 'function-specific'. The common law presumption of capacity In the common law, every person is presumed to have mental capacity until the contrary is proved. Where a person has been proved or admitted to have been so mentally disordered as to lack the capacity to make a contract or disposition, such a condition is presumed to continue until it is proved to have ceased, and the burden of proving a recovery or a lucid interval

In order to make a valid Will, the testator must satisfy a capacity test on two separate occasions: • when they give instructions for the drafting of the Will or at the time it is written or typed out by the client themselves • at the time of executing the Will If there is no capacity at either time, the Will may be invalid. The problem can be that between the time of instructions and the execution of the Will capacity diminishes or disappears. The capacity required at the time of execution can be less than that required at the giving of instructions but in such circumstances the testator must still recall the instructions and that the Will that is being executed complies with those instructions. A difficulty that the practitioner will come across with elderly clients is that the instructions may come from a third party. There is nothing inherently wrong with this but the greatest caution needs to be exercised and the principles referred to in Parker v Felgate cannot

Questions of capacity to marry, cohabit, have sexual relations and agree to the use of contraception are clearly highly sensitive and personal issues in which individuals’ Article 8 rights to a personal and family life are strongly engaged. This Practice Note starts by providing an overview of the general legal framework for assessing capacity under the Mental Capacity Act 2005 (MCA 2005) and then goes on to examine the specific tests developed by the courts to assess each of these issues, which reflect the delicate balance between protecting vulnerable individuals and promoting personal autonomy. Due to the desire to enable vulnerable adults with learning difficulties and other cognitive challenges to enjoy the benefits of married life and/or a sexual relationship, the relevant tests for capacity have been set at a deliberately low level and are widely considered to require a lower level of capacity than, for example, the test for testamentary capacity. Capacity: general principles The general legal principles to be applied when determining whether a person has capacity are set out in

Private Client analysis: The Honourable Mr Justice Hayden clarified both the Court of Protection’s role where a complainant may lack capacity to participate in a defence expert assessment and the test for capacity to marry. Participation in such an assessment may constitute a welfare decision requiring a section 4 of the Mental Capacity Act 2005 (MCA 2005) best interests determination, while the Crown Court remains responsible for admissibility and fair-trial issues. On marriage, the court endorsed a simple, status-specific test focused on the mutual agreement, enduring change of status and formal processes of entering and leaving marriage. Crucially, although capacity to marry and capacity for sexual relations remain distinct, a person lacking capacity for sexual relations cannot have capacity to marry, departing from NB v MI. Produced in partnership with Gina Allwood of 7BR.

This Practice Note explains that the Mental Capacity Act 2005 (MCA 2005) creates a presumption of capacity, in the absence of proof to the contrary, for adults to make informed decisions. It sets out the principles that govern the determination of capacity and a person’s ability to rationalise a decision under MCA 2005 and discusses the Code of Practice for those working with, or caring for, those lacking capacity. It covers the MCA 2005 definition of the best interests of a person who lacks capacity and the protection available for those responsible for the care of those who lack capacity. It explains that capacity to make decisions are both time and decision specific and the factors to consider when determining capacity to decide where to live and what care to receive. Presumption of capacity for adults MCA 2005, s 1(2) 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

1. Have there been any recent developments regarding the Cape Verdean merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Cape Verde? Competition in Cape Verde is governed by the Competition Act Decree-Law No. 53/2003 of 24 November 2003 (Competition Act). In terms of the Competition Act, the entities responsible for overseeing and enforcing competition rules are the Ministry for Industry, Trade and Energy (MITE) and the National Directorate for Industry, Trade and Energy (NdTE), which conducts research and investigations, and prepares the file for ministerial decision. A notable recent development is that the competence to oversee competition matters has been transferred to the Ministry of Finance in the short-to-medium term. The legislation provides for a Competition Council to take up the role of executive regulator of competition matters in relation to restrictive practices and an advisory role in support of the MITE with regard to merger control. The Competition Council has not yet become operational. There are other regulators which have marginal power to regulate