Mental Capacity and the Court of Protection

Mental capacity refers to whether someone has the cognitive ability to understand, retain, and evaluate information in order to make a particular decision. There are specific tests buried in case law regarding capacity to enter into certain deeds and transactions, for example, the test for mental capacity to prepare a will is found in the centuries old case of Banks v Goodfellow. However, broadly speaking, an individual must have the requisite mental capacity in order to make decisions regarding their property and financial affairs, and their personal welfare.

There are many circumstances in which people may lack mental capacity, with common examples including people living with advanced dementia, or severe learning difficulties. It is important to note that, under the Mental Capacity Act 2005, adults in the UK are presumed to have mental capacity unless proven otherwise. In addition, mental capacity can fluctuate, and people living with cognitive impairments often still have the capacity to deal with certain elements of their affairs.

Where an individual lacks the mental capacity to make decisions regarding their affairs, it is crucial that their interests and rights are protected, and there are a number of safeguarding bodies in place to ensure that this is the case, including:-

• The Court of Protection, which is a specialist Court who consider all matters regarding the financial and personal welfare of people who lack the mental capacity to make such decisions themselves; and
• The Office of the Public Guardian, which is a government agency who have responsibility for protecting and monitoring the interests of individuals who lack capacity.

Many people prepare Lasting Powers of Attorney to ensure that, in the event they become unable to make decisions themselves, their trusted family members, friends, or advisors can make such decisions for them.

However, in the circumstances where someone loses capacity and does not have a Lasting Power of Attorney in place, or where someone lacks the capacity to make decisions regarding their affairs from a young age, it may be appropriate to make an application to the Court of Protection. The Court of Protection can grant deputyships (where a deputy is appointed to manage an individual’s property and financial affairs or personal welfare on an ongoing basis), or the Court can grant permission for specific actions.

If you have concerns regarding the property and financial affairs or personal welfare of someone you know, please do contact a member of our specialist Court of Protection team who are more than happy to assist.