Mental Capacity

Someone lacking Mental Capacity is unable to do one or more of the following four things:

Understand information provided about a particular decision.
Retain that information long enough to make a decision.
Consider and assess the information to make a decision.
Communicate a decision
- by talking
- through sign language
- or any other means.

This may be because of:

In order to protect the rights of the vulnerable various acts have been introduced including:

Our Wills, Probate and Later Life Planning team are all experts in their field. They will be happy to provide further advice including:

How to put plans in place to minimise the risk, should you lose the ability to make decisions in the future e.g. Lasting Power of Attorney (LPA).
How to protect someone's rights, should they lose the ability to make decisions for themselves but do not have, for example, an LPA in place.

The principles of the Mental Capacity Act 2005 are that a person:

Must be assumed to have capacity unless it is established that they lack capacity.
Is not to be treated as unable to make a decision, unless all practical steps to help them to do so have been taken unsuccessfully.
Is not to be treated as unable to make a decision merely because they make an unwise decision.

Any act done, or decision made, under the MCA 2005 for or on behalf of a person who lacks capacity must be done, or made, in their best interests.

Further guidance for professionals and social workers can be found on the Capacity Guide website.

For a will to be valid, the testator must meet four criteria established in the case of Banks v Goodfellow (1870):