Sam Firth considers this challenging issue

19 September 2018

Dealing with the realisation that a relative or friend is losing, or has lost mental capacity, can be both daunting and emotionally challenging.  For many people, this might be the first time that they have had to deal with the issue of mental capacity.  In this article, we hope to provide a brief and non-exhaustive overview of how the law defines incapacity.  This is the issue which underpins many other decisions.  For example, if a person is deemed to lack capacity to manage their property and affairs, then they would not have capacity to enter into a Lasting Power of Attorney, and would instead require a deputy to be appointed to make decisions on their behalf and in their best interests.  Being able to know whether a person has mental capacity is therefore a crucial first step on the path towards a settled arrangement that will provide for decision-making in the future.

The relevant law is the Mental Capacity Act (or ‘MCA’), which came into force in 2007.  The MCA provides a definition of incapacity, however before it does this, it sets out some key principles that apply in all cases.  These include the principle that a person is assumed to have capacity, and that evidence is required in order to overturn this assumption.  Another principle is that a person is not to be treated as being unable to make a decision, unless all practicable steps to help them to do so have been taken without success.  A further principle establishes that a person should not be treated as unable to make a decision (i.e., to lack capacity), merely because they make an unwise decision. 

In many cases, questions about a person’s capacity might be raised because family or friends are concerned that they have made an unwise decision, or decisions.  Although unwise decision-making is not part of the test for incapacity, it is still true to say that a person who lacks capacity may then go on to make unwise decisions, because of the condition that causes their incapacity.  Whatever the trigger is for a concern to be raised about a person’s mental capacity, it is crucially important to consider how the law defines what mental incapacity is.

The MCA refers to a person who lacks capacity as a person who is “unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”  




This is a very wide definition.  An impairment or disturbance of the mind or brain could arise for any number of reasons, for example a brain injury, a degenerative condition such as Alzheimer’s disease, or a period of mental ill-health.  This is not an exhaustive list.  Only if a person has such an impairment or disturbance will what is known as the functional test apply.  The MCA provides that a person is unable to make a decision for themselves if they are unable:

(a) to understand the information relevant to the decision,

(b) to retain that information,

(c) to use or weigh that information as part of the process of making the decision, or

(d) to communicate the decision (whether by talking, using sign language or any other means).

An issue that often arises is a concern that a person may be vulnerable to financial abuse.  Although this is an issue that the Court can have regard to, it is not itself part of the test for incapacity.  The law recognises that financial abuse can take place with, or without the victim having mental capacity.  As with the principle regarding unwise decision-making, financial abuse may be a symptom of mental incapacity, but cannot be the sole cause of it.  For more on protection against financial abuse see

Any application to appoint a deputy will require an opinion to be provided about whether the person concerned has mental capacity.  There are no hard and fast rules about who should provide this opinion; the important point is that the correct test (as outlined above) is followed.  In many cases a person’s GP may be approached to provide an opinion, however there is no requirement that the assessor is medically qualified.

Hugh Jones Solicitors have a wealth of experience in all aspects of the process of appointing deputies, whether the deputy is to be a professional, or a friend or family member of the person concerned.  

For a free initial discussion contact us on or call 0161 871 3680.

Sam Firth June 2017.jpg   Sam Firth, Associate Litigation Executive