A question of capacity

In order to make a will or lasting power of attorney, the maker must satisfy the requisite level of understanding and have what is called, ‘mental capacity’ but this can be a confusing and complicated principle. Capacity may be particularly difficult to determine in cases where a relative or friend has early signs of dementia or other impairment.

Mental capacity is the ability to make a decision, regardless of whether that decision is trivial or significant. The most important aspect of assessing capacity is a person’s ability to carry out the processes involved in making the decision, not the outcome of the decision.

Capacity is decision specific and whilst a person may have capacity to make some decisions, they may not satisfy the tests to make others. Capacity is not a constant so the decision maker may have capacity at some times and not others.  Every time a decision needs to be made, an assessment of capacity should be carried out.

The Mental Capacity Act 2005 sets out a two-tier test of capacity which is summarised below:

1. Does the person have an impairment of, or a disturbance in the functioning of, the mind or brain? and
2. Does the impairment or disturbance mean that the person is unable to make the specific decsion at the time that it needs to be made?

When an assessment is being made, the test for capacity takes a “function specific” approach, relating to the decision in question at that time and it is not a question of whether a person has capacity to make particular types of decisions generally.

If you have concerns that a friend or relative may have diminishing capacity, then it is always best to act quickly. If you have concerns about the capacity of a friend or loved one, then please contact us.


Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.

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