.svg){kind=small}
Insight > Court of protection FAQS > What is mental capacity and when is it lost?
What is mental capacity and when is it lost?
Capacity is the ability of an individual to make a specific decision. It is time and decision specific: an individual might have capacity to make some decisions (for instance, what to include in their weekly food shop) but not others (for instance, complex investment decisions or to make a will).
An individual is presumed to have mental capacity, unless it can be proved that they do not. Under the Mental Capacity Act 2005 an individual will lack capacity 'if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain'.
An individual is 'unable to make a decision' if they unable to do any of the following:
- understand the information relevant to the decision;
- retain that information;
- use or weigh that information as part of the process of making the decision; or
- communicate their decision.
The individual should be given all the support they need to enable them to make a decision (for instance, ensuring information is provided in an accessible way or facilitating non-verbal communication) before it is concluded they are unable to make that decision. It is also important to remember that people are entitled to make unwise decisions.
In these FAQs and answers, we use 'England' as a shorthand for 'England and Wales' because England and Wales share a single legal system. Scotland, meanwhile, is a different legal system and has different rules for many aspects of court of protection law.
These FAQs (and our website more generally) contain general information based on English law as it stands at the date of publication, but they do not constitute legal advice. Whilst we endeavour to ensure it is accurate and up to date, website users should seek appropriate legal advice before taking or refraining from any action based on the content of the website. We would, of course, be willing to assist with this, and you can contact us here.
Any pricing information is similarly general. Our clients' relationship with us is governed by the terms of the engagement letter sent to them at the beginning of their instruction.
Get in touch
Our website will give you a flavor of the advice we provide - if you would like to talk to us for more information, please call us and we will be happy to assist.
Send an enquiry