The Mental Capacity Act 2005

Section 2 provides:

(i) a person lacks capacity in relation to a matter 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;

(ii) It does not matter whether the impairment or disturbance is permanent or temporary.

A lack of capacity cannot be established merely by reference to—

(i) a person’s age or appearance, or

(ii) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

Section 3 provides that a person is unable to make a decision for himself if he is unable to:

(i) understand the information relevant to the decision,

(ii) retain that information,

(iii) use or weigh that information as part of the process of making the decision, or

(iv) communicate his decision (whether by talking, using sign language or any other means).

A person is not to be regarded as unable to understand the information relevant to a decision if he makes an unwise decision or if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. The information relevant to a decision includes information about the reasonably foreseeable consequences of:

(i) deciding one way or another, or

(ii) failing to make the decision.

Section 1 of the Mental Capacity Act 2005 states that anyone making a decision on behalf of a person lacking capacity must act in the bets interests of that person. When deciding what is in the best interests of the person the details of section 4 must be considered including the past and present wishes and feelings of the person who lacks capacity.

The Mental capacity Act 2005 Code of Practice provides guidance to persons with duties under the act. Attorneys must have regard to the code of practice when making decisions on behalf of the donor.