Mental Capacity

The mental capacity of a person is fundamental to the legality of their decisions and their ability to exercise their rights and choices.

Capacity does not just affect the elderly.  There may be other illnesses or disabilities that impact on mental capacity e.g. dementia, personality disorders, brain injuries and learning disabilities.

There is a legal presumption of capacity unless the contrary is shown.  Whether a person has mental capacity to make a particular decision is a matter of law, to be determined by applying the correct legal test at the time the decision is made.  Different levels of mental capacity are required for different decisions, for example, granting an enduring power of attorney in relation to property or in relation to personal care and welfare has different legal tests to making a will or signing a contract, such as an Occupation Right Agreement.

If there are grounds to doubt a person’s mental capacity, it will often be advisable for the person’s solicitor to seek a medical opinion.  It will be necessary for the solicitor to explain the relevant legal test of mental capacity to the doctor. Using the medical opinion and other relevant information, the solicitor ultimately decides whether they are satisfied that the person has the required level of capacity to make the decision or enter into the legal document.

People with diminished mental capacity can be vulnerable to undue influence from those people around them.  It is important that a person’s affairs are in order before they become mentally incapable.

If you have concerns or queries regarding any mental capacity issues, please contact a member of the team at Vicki Ammundsen Trust Law Limited.