When will someone lack mental capacity?
To determine whether someone has mental capacity or not, the following test is applied:
- Can they understand information that is relevant to the decision?
- Can they retain that information, even if only for a short period?
- Can they use or weigh up that information as part of the decision-making process?
- Can they communicate their decision, by whatever means?
If any of the above requirements are not met, then that person is considered to lack mental capacity.
However, mental capacity is not a ‘blanket’ state. A person may lack the mental capacity to make certain decisions but be able to make others. Each decision, and their capacity to make it, should be assessed on its own.
Similarly, the loss of mental capacity could be permanent or temporary depending on the reasons behind it. Certain medical conditions, for example, can cause varying degrees of mental impairment from day to day.
It is a legal principle that everyone is assumed to have mental capacity unless it can be established otherwise.