Assessing capacity

1. You must establish what decision needs to be made
2. You must assume that the person has got capacity to make the decision until proven otherwise
3. The person has nothing to prove - if you are challenging someone's mental capacity to make a decision, it is you that has to prove it.

Ask the following questions:

1. Does the person have an impairment of, or a disturbance in the working of, their mind or brain? This could include things such as dementia, learning disabilities, acquired brain injury or delirium
2. Does the impairment or disturbance mean that the person is unable to make the specific decision when they need to? A person is unable to make a decision if they cannot:
   • understand relevant information about the decision to be made
   • retain that information in their mind
   • use or weigh that information (pros and cons) as part of the decision making process, or
   • communicate their decision by talking, signing or any other means
   • record the outcome, what information was given?
   • refer to chapters three and four of the Mental Capacity Act code of practice for guidance, use the wording of the Act

Some decisions can never be made on behalf of others because they are so personal or they are governed by other legislation. These include capacity to:

• litigate
• make a will
• give a gift
• enter into a contract
• vote
• marry