Mental capacity is a legal concept. It refers to an individual’s ability to make decisions for themselves.
We, as Wills, Trusts, and Probate Solicitors have a duty to consider whether our clients have the requisite capacity to make a Will (referred to as testamentary capacity), act as a Trustee and produce Lasting Powers of Attorney.
Our duty will involve evaluating the following:
Professionals need to consider the mental capacity of every client to ensure they understand the nature of the decision and can weigh up the effects to decide upon the course of action they wish to take.
The main test for mental capacity is set out in the Mental Capacity Act 2005 for most decisions; however, for Wills, the test for testamentary capacity is set out in a case dating back to 1870 called Banks v Goodfellow.
Mental capacity is not black and white. It is decision specific and can alter over time. Whilst one individual may have the capacity to decide what they want for dinner, they may lack the capacity to decide who they want to inherit their Estate.
Individuals may also have capacity on some days but not others if they experience lucid intervals.
A lack of mental capacity is not always permanent, and it is possible to regain capacity.
Whilst those lacking capacity due to suffering from a form of dementia may be unlikely to regain mental capacity, it is possible for an individual who temporarily lacks capacity due to, for example, certain medications or suffering a complex reaction to grief to regain mental capacity.
Each decision needs to be evaluated on the facts and the circumstances prevailing at that time for the individual concerned.
If there is any doubt about capacity, a medical professional should carry out a capacity report for the individual concerned. It is common for a legal professional to insist upon a professional capacity report in Private Client law if the individual is elderly, on certain medication or suffering from dementia.
A capacity report is particularly important if the individual is also making a significant change to their Will or the circumstances surrounding the appointment of an Attorney or the making of the Will are suspicious.
A medical professional involved with the individual’s care may agree to produce the report, or a third-party professional can be instructed instead.
There is usually a charge for this service by the medical professional. Once the report is produced, the next steps can then be determined.
We strongly advise seeking professional assistance from Private Client solicitors where an individual making a Will or Lasting Powers of Attorney or acting as trustee has capacity issues.
Professional assistance is particularly important to help prevent a challenge to the validity of a Will on the grounds of capacity or a report to the Office of the Public Guardian.
Ultimately, seeking professional assistance ensures that all appropriate steps are taken to better guarantee that your intended beneficiaries in your Will are protected and that your chosen Attorneys can assist you with your affairs.
In relation to Trusts, it is important to seek advice to ensure that the incapacitated trustee is properly retired from acting. There are strict rules on when and how a Trustee can retire as a Trustee.
The other Trustees or the beneficiaries should seek legal assistance to ensure the Trust assets are protected and that the Trustees are complying with their legal duties and obligations.
If you have already made a valid Will and later lose capacity, your Estate on death will pass according to that valid Will. If you had not made a valid Will, your Estate would pass following the Intestacy rules.
If you regain mental capacity, you could decide to make a new Will or revoke the current Will. We recommend making a Will before any capacity issues arise.
If you do not have Lasting Powers of Attorney in place and you lose mental capacity, a close family member or friend will likely need to apply to the Court of Protection to be appointed as your deputy.
As this is a timely and costly application and you cannot choose who will be appointed to act on your behalf, we always advise getting LPAs in place as early as possible. Providing you still have the necessary capacity, you can revoke your LPAs and make new LPAs should your wishes change.
Finally, if you lose capacity as a Trustee, the co-trustees or, failing that, the beneficiaries would need to seek advice regarding how you can be removed and potentially replaced.
As mentioned above, strict rules surrounding this area of law and legal assistance should be sought to ensure the Trustees comply with their duties and the Trust assets are sufficiently protected.