What is Mental Capacity?
Mental Capacity is merely another way of saying ‘A person’s ability to make a decision’. Mental capacity is determined by whether a person has an impairment or disturbance of the mind or brain (such as a mental illness, brain injury, stroke or severe learning disability) that is directly affecting their ability to understand, retain, weigh up information related to the decision and/or communicate their thoughts, wishes and feeling about the issue.
Because every decision we make requires us to understand different pieces of information, we say that mental capacity is ‘item specific’. For example, what a person needs to understand to decide where to live is very different to what they would need to understand to make a Will. It is therefore possible to have capacity to make some decisions but not others.
You may also hear us say that mental capacity is ‘time specific’ – this is because someone’s mental capacity can fluctuate; decline or improve depending on their cognition at that time. For example, someone who has had a stroke may lack the mental capacity to make health and welfare decisions only a week after the stroke, however, they may then regain that capacity a couple of months down the line. Another example may be someone who has dementia and experiences higher levels of confusion at different times of the day.
What is a mental capacity test?
A mental capacity test is how we work out a person’s ability to make a specific decision. Different decisions require you to understand different things, we call this ‘The threshold of understanding’. The threshold of understanding for different decisions is established either through case law (for example in the case of making a Will its Banks v Goodfellow) or through the Mental Capacity Act (2005).
The use of the word test is often misleading – a mental capacity assessment is much more about having a conversation with someone. In fact, we do our very best not to make it feel like a test as we want to ensure the person is comfortable and feels able to answer without pressure.
Is it possible to have a mental illness and have capacity?
Yes, the two things are very different. In fact, it is very common for people to have a mental health diagnosis and have capacity to make decisions.
How do you know if somebody has capacity?
There are specific legal criteria which a person needs to meet, and these vary depending on the decision being assessed. By using recognised and TSF specific methods to set the threshold of understanding, we are able to identify the necessary information a person needs to understand, retain, weigh up/ use and communicate to help us determine if a person has capacity.
Is a mental health assessment the same as a mental capacity assessment?
No, they are two very different things. A mental capacity assessment is about determining a person’s ability to make a decision. A mental health assessment is to determine if a person has a mental illness.
What happens in a mental capacity assessment?
A mental capacity assessment consists of 3 stages (see article on how long does a mental capacity assessment take) but the one most people are concerned about is the ‘face to face element’.
The first thing to emphasis is that an assessment is not about trying to ‘catch you out’, it is about showing you at your best, identifying your strengths, weaknesses and any support you require in relation to being able to make the identified decision.
In order to do this, one of our mental capacity assessors will meet with you on a one to one basis, at a time and place that suits you best. Our mental capacity assessor will take time to put you at ease and explain exactly what they are assessing for and the specific criteria that they are looking for. We don’t believe in trick questions and if there is anything you don’t understand let the assessor know so they can explain it to you in a way you can.
Whilst our preference is that we see you by yourself, you can have other people around to introduce you and help you settle before the assessment. They can also stay in close proximity, say another room so that you can call for them if you feel you need their support with anything.
Why do you want to see me by myself?
It is important that we get a true picture of what you can and cannot do by yourself. Often when others are in the room, they can inadvertently influence the way a person acts and responds.
How much of the process can you help with?
We can support you fully through the assessment process, from referral to production of the final report. To assist you with this you will be provided with your own dedicated Client Liaison Officer who will support you through the entire assessment process.
Unfortunately, we cannot assist you with other legalities or processes related to your particular issue. We are not solicitors, but there are lots of solicitors who deal with mental capacity and the Court of Protection. Take a look at our partners page to see some of the solicitors we work with. Alternatively The Law Society have a database that you can search for solicitors.
How are your assessors qualified to carry out a mental capacity assessment?
All of our assessors are qualified health and social care professionals who are experts within their own particular fields. They are all recognised by the Court of Protection and the Office of the Public Guardian.
As well as their clinical expertise, we provide them with additional, TSF specific, training and support in relation to the assessment of mental capacity assessments. Our vast experience in the field has allowed us to gain unique insights and develop more robust processes to ensure a high-quality assessment and write up.
Where will the assessment take place?
All our assessments take place at a time and location of your choosing, it just needs to be somewhere you feel comfortable and in a location that offers privacy. 99% of our assessments take place at the person’s home.
How long does the assessment last?
This depends on a number of different factors such as how many decisions are being assessed and the extent of a person’s cognitive impairment. In general, you should allow for an hour to an hour and a half for the assessment of one decision.
What if the person being assessed has communication difficulties?
This is not a problem and not uncommon. All our assessors are skilled in supporting individuals with communication difficulties. If we are aware of the difficulties beforehand we build in add extra time and support to the assessment process.
We also have specialist Speech and Language Therapists as part of our team which further add to our ability to support those with communication difficulties.
Why do you need all the information on the referral form?
It is really important that we are able to validate any information a person gives us during an assessment and the information we receive will help to determine some of the questions we ask during the assessment.
The referral form also enables us to gain an insight into the individual we are assessing, what factors may influence the way they think and whether they might need any additional support during the assessment.
How quickly can you carry out the assessment?
Our aim is to carry out all assessments within 2 weeks of receipt of payment. They are often carried out more quickly that than this and if yours is particularly urgent or you have a deadline let us know in advance and we can make arrangements to ensure it is completed it in time.
Can I instruct you myself or do I need a solicitor?
You can instruct us privately. We often suggest you have a solicitor as they can help you navigate other aspects of your case.
Do you make multiple visits?
The majority of the time we are able to identify whether a person has capacity or not on the first meeting. On occasion a second visit is required we will discuss this with you as soon as it becomes apparent.
What is the referral process?
We would ask you to contact our Client Liaison Team either by telephone 0333 577 7020 or via the Contact Us form.
If you have discussed your enquiry over the phone, with your consent, you will receive an email with a copy of your quote, required referral documentation, our present turnaround times and details of the next steps. If you are happy to proceed, please complete and return the documentation and you will then be issued with an invoice. Once payment has been received, your dedicated Client Liaison Officer will contact our assessors local to the individual being assessed. They can liaise with you or a nominated contact to arrange a mutually agreeable date and time for the assessment.
If you have submitted your enquiry via the contact us form, you will receive a reply within 48 hours detailing the same as the above.
What if the person refuses to be seen by your assessor?
Ultimately, we cannot force an individual into engaging in an assessment. We believe in a person-centred approach and work hard to ensure all the people we see feel as comfortable as possible throughout the process.
If there are certain criteria that we can follow, such as requesting a female assessor for example, that may help the client feel more open to being assessed, please let us know and we will do our best to accommodate the request.
What if the person is unwell at the time of the assessment?
If the person being assessed is unwell, we would be unable to conduct the assessment. It is important that we give the individual all they need to show the best of themselves during the assessment. We ask that you inform us as soon as possible if a cancellation needs to be made, this helps us avoid any unnecessary costs being passed on. In some circumstances there will be a small administration charge, but we do our best to keep this to a minimum.
Once the client is feeling better, please contact your Client Liaison Officer to re-arrange the assessment. (In cases where the client has been unwell due a UTI, we would like to allow at least two weeks to ensure they are clear of any infection.)
What is a CoP3 form?
‘CoP’ stands for ‘Court of Protection’. Every application to the Court of Protection must have a mental capacity assessment conducted. The form that we use to document the mental capacity assessment is known as a ‘CoP3’ because it is the ‘Court of Protection’ form, number ‘3’.
Can you complete a CoP3 form?
Yes, we regularly complete Part B of CoP3 forms for a variety of different decisions. All of our assessors regularly have evidence accepted by both the Court of Protection and the Office of the Public Guardian.
Following the completion of Part B, we will send you the signed and dated form to enable you to continue your application to the Court.
What is a certificate provider on a Lasting Power of an Attorney (LPA)?
The certificate provider, Section 10, of the LPA is to be signed by a someone to confirm that the person singing the LPA understands what they are signing and is under no duress.
Can you complete the certificate provider section of an LPA?
Yes, we are frequently asked to be certificate providers (section 10) for LPAs. We can also act as witness for the LPA documents too.
Can you act as a witness on an LPA?
Yes, we do this on a regular basis. We can also act as the certificate provider at the same time.
What is testamentary capacity?
Testamentary capacity is just another way of saying ‘the ability to make a Will’. The criteria for this is laid out in a ruling known as Banks v Goodfellow. It essentially says that in order to make a Will a person needs to be able to understand the nature and purpose of a Will, to understand the extent of their estate, to be able to consider the claims of those that may feel they should inherit and there is no mental ill health or cognitive issues stopping the person from being able to make the Will.
Can you act as a witness to the Will when completing a testamentary capacity assessment?
Yes, we can as long as we have a copy of the finalised Will at the time of assessment and if the client is found to have capacity. We only provide one independent witness, so you will need to provide the second.
If the Will is not present at the time of the assessment and the client is found to have capacity, we can organise for a revisit. An assessment will need to be carried out again, due to the time specific nature of capacity but the visit will be charged at a reduced cost.
What happens if a Will is contested following the competition of a capacity assessment?
When we complete a testamentary capacity assessment we produce a comprehensive report that can be kept alongside the signed Will. In many circumstances this independent and robust report can be used in the circumstance of a contest. It would give evidence to show that the person had capacity to create a Will and the discussions of their wishes for the Will.
If the situation calls for it, we can also provide further information from the assessment or ask the assessor to attend court (please be aware there would be additional charges for this service).
What does capacity to litigate mean?
Capacity to litigate is another way of saying if a person has the mental capability to partake in legal disagreements that are being settled in court. These disagreements can cover many areas of the law such as divorce, medical negligence or criminal to name a few.
How much information do you need for a capacity to litigate assessment?
As much as possible. It is really helpful for us to understand the background to the case and any concerns as to why you think the person may have or lack capacity. It is not always necessary to have access to medical records so please check before you go to all the trouble of getting them and sending them to us.
What types of capacity to litigate assessments can you carry out?
We carry out all types of capacity to litigate assessments. Most commonly we are asked to assess capacity to litigate in relation to issues such as medical negligence, personal injury, capacity to plead or stand trial, divorce and commercial issues. However, this list is not exhaustive. Please contact us to discuss your particular case.
Will your assessors attend court if needed, following a capacity to litigate assessment?
Yes, of course, though you need to be aware that there is an additional charge for this to cover travel, time at court and any additional expenses incurred.