What happens if mental capacity is disputed?
When a lot depends on the outcome of a decision, arguments may arise over whether the decision-maker lacked the mental capacity to decide at the time.
As mentioned above, one of the fundamental principles of mental capacity is that someone is presumed to have mental capacity unless it is proved otherwise.
This means, if anyone seeks to challenge a Will or other decision on the basis that the decision-maker lacked capacity at the time, they will have to present the proof necessary to render the decision invalid. They have to prove it was more likely than not that the person lacked capacity.
Alternatively, people could contend that a decision which was taken on a person’s behalf was improper, that the person was mentally capable to do it themselves, or that the actual decision taken was not in the best interests of the mentally incapable person. In these situations, the actual decision-maker must support their contention that the person was mentally incapable to make the decision for themselves, and/or that the decision they made was the right one.
You can apply to the Court of Protection to seek a ruling on whether someone does, or does not, have the required mental capacity for a particular decision.
What can I do to prepare for a possible loss of mental capacity in future?
A Lasting Power of Attorney (LPA) is one of the best ways to safeguard your affairs should you lose mental capacity in later life. Making an LPA involves appointing one or more ‘attorneys’ as people with clear authority to make decisions on your behalf.
There are two kinds of LPA:
- Property and Finance.
- Health and Welfare.
Both types have to be registered with the Office of the Public Guardian to allow your attorneys to make decisions for you.
With a Health and Welfare LPA, decisions can only be taken on your behalf by your attorneys if you lose mental capacity. However, under a Property and Finance LPA, it is possible to grant your attorneys permission to make decisions for you as soon as the LPA has been registered.
LPAs are useful documents when planning for the future. However, in order to make an LPA, you must have mental capacity at the time. The MCA mental capacity test is used to determine this.
Because the MCA test means you must understand the information relevant to a decision, the kind of information you must be able to understand when making an LPA includes:
- What the LPA is.
- The purpose of the LPA.
- The powers that your attorneys will have i.e. what they can and can’t do as well as which type of LPA they will act under – Health and Welfare, Property and Finance, or both.
- Who you want to appoint as attorneys and why you have chosen those people.
Following a ruling by the Court of Protection, if you make an LPA you must also understand that:
- The LPA cannot be used until registered with Office of the Public Guardian.
- Under a Health and Welfare LPA, your attorneys can only make decisions for you when you do not have capacity to make the decisions yourself. As mentioned above, this is not necessarily the case with a Property and Finance LPA.
As you can see, these are relatively complicated concepts for someone to understand. This is one reason why making an LPA sooner rather than later can avoid issues over whether you have the mental capacity to make one.