The Mental Capacity Act in practice.
The first principle of the Mental Capacity Act (2005) states that we must always presume capacity in the first instance. This means that we should always start from a position where we presume that an individual has the ability to make a decision (i.e. has capacity), rather than the other way round.
In a recent blog we explored the decision-specific nature of the Mental Capacity Act (2005) in practice. In today’s blog, we will explore how this applies to Lasting Power of Attorney (LPA).
When assessing Mental Capacity, it is our responsibility to inform the person we are assessing of who we are, why we are visiting them, and the purpose of the assessment.
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According to the Mental Capacity Act (2005), a Mental Capacity Assessment is made up of two stages, functional and diagnostic. It has therefore been referred to as the ‘two-stage’ test. However, a quick browse online, alongside discussion with different professionals, reveals quite a bit of misunderstanding around how many stages there are and when these stages apply. This is perhaps due to the inconsistent way that assessments are referred to by certain institutions and professional bodies. There also seems to be some confusion between the four steps of the functional stage of an assessment, and the two stages of the overall assessment.
Clearly, terminology is important, and we should make efforts to ensure we are always using the correct terms.
A standard mental capacity assessment (also known as the two-stage test) is usually carried out for a specific decision at a specific time. It is completed prior to the decision being made if there is either a ‘reasonable belief’ that an individual may lack capacity, or to reduce the risk of someone challenging the person’s capacity to make the decision at some point in the future.
Meanwhile, a retrospective mental capacity assessment refers to a traditional assessment of capacity for a specific decision, but for a decision made historically. Examples might include a Lasting Power of Attorney submission signed and submitted the previous month, or a financial gift made to a family member or friend several years in the past.
We all make many thousands of micro-decisions on a daily basis, from the way we make a cup of tea to what we watch on TV. However, when it comes to decision making, the Mental Capacity Act (2005) is ‘decision specific’. This means that it relates to a specific decision made at a specific time. It does not refer to decision-making more broadly. This raises the question: how specific do we need to be when we assess capacity?
An appointee is someone who has been appointed to act on behalf of a person claiming benefits who cannot manage independently due to being ‘mentally incapable or severely impaired’.
The primary role of a Best Interest Assessor (BIA) is to complete the Mental Capacity Assessment and Best Interest Assessment steps within the DoLS process. These are recorded as part of Form 3.
They can also be commissioned by the Supervisory Body to complete ‘Age’ and ‘No Refusals’ steps if required.