Assessing capacity
The act states that capacity relates to the particular decision being asked and that capacity can vary. It also states that capacity can be temporary or permanent. Anyone assessing someone's mental capacity to make a particular decision should use the two stage test of capacity.
Two stage test of capacity
Stage 1:
Does the person have an impairment of, or a disturbance in the functioning of their mind or brain? If so,
Stage 2:
Does the impairment or disturbance mean that the person is unable to make the particular decision?
The person will be unable to make the particular decision if, after all appropriate help and support, they cannot do one of the following:
- Understand the information given
- Retain the information long enough to be able to make the decision
- Weigh up and use the information
- Communicate their decision - in any way
If it is shown that the person lacks capacity to make a particular decision then someone must act in the person's best interests to make the decision for them. This person is called the decision maker.
Who can be a decision maker?
Many different people may be required to make decisions or act on behalf of someone who lacks capacity - carers (both paid and unpaid), family, nurses, doctors, social care staff, Lasting Power of Attorneys (or Enduring Power of Attorneys) and Deputies appointed by the Court.
Contact us
The Office of the Public Guardian and the Court of Protection
Archway Tower
2 Junction Road
London N19 5SZ
Telephone 0845 330 2900
Fax 020 7664 7705
Textphone 020 7664 7755
Website www.publicguardian.gov.uk