By Heledd Wyn, Gregg Latchams
With the 10 year anniversary of the Mental Capacity Act 2005 (MCA) behind us – let us take a look at the impact of this legislation on the lives of those whose capacity is impaired – through illness or injury.
The Mental Capacity Act 2005 is underpinned by five key principles:
1. Capacity must be presumed until shown otherwise
2. People should be supported to make their own decisions wherever possible
3. It is perfectly acceptable to make unwise decisions where there is capacity to do so
4. If it is deemed that there is a lack of capacity, then any decisions that are made on behalf of the individual who lacks capacity must be made in their best interests
5. Where a decision is being made in best interests, then that decision must be made in the least restrictive manner possible
The MCA also introduced Lasting Powers of Attorney for property & financial affairs and health & care issues, as well as formalising the new Court of Protection and creating the role of the Public Guardian.
One of the most important aspects of the MCA is that capacity is task specific. Someone may not understand that they own a property and how to manage a large financial portfolio – but will still be able to make their views clearly known about how they want to live their life on a day to day basis. A phrase taken from the dementia awareness community is that “every dementia is different because every person is different”. This applies to anyone who has impaired capacity and it is really important to abide by the principles of the MCA when considering whether this person has capacity to make certain decisions.
The principles behind the MCA are extremely important to bear in mind when working with individuals who have an illness or injury and are making decisions about their estate planning. Do they want to make Lasting Powers of Attorney? Perhaps they want to update their Will. They may even want to do both.
However, it is important to remember that when it comes to assessing capacity, the principles of the MCA do not supersede the test for capacity to make a Will. This is the rule set out in ‘Banks v Goodfellow (1870) LR 5 QB 549’ which confirms that the person making the Will:
• understands the nature of making a Will and the effect of the Will when it comes to be administered
• understands the extent of their assets (including property) which is being disposed of under the Will
• understands the people who might reasonably expect to receive assets under the terms of the Will; and finally
• not be experiencing any ‘delusion of the mind’ that would prevent them giving assets to these individuals.
So, making a Will is something where capacity needs to be considered. It is task specific and one that comes with its own capacity test.
It is interesting that with such a change in the law about capacity to become more task specific, that there is still such a strict test for making Wills.
For anyone working in this field – it is important to balance the competing areas of mental capacity tests and how they apply to the individual depending on their particular requirements. However, while the ‘Banks v Goodfellow’ test only applies to Wills, the principles of the MCA are like a thread which is woven throughout all the interactions we have with our clients. It is only going to become more complex in the decades to come.
This blog is featured in the summer 2019 Edition of the quarterly news digest, Entitlement. Download your free copy of Entitlement for more informative articles and interesting case studies.