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Understanding Capacity

As lawyers, we are required to meet with you and take your instructions in order to help you complete the particular legal task you are planning.  Sometimes when we do this, we need to take a little extra time to consider your mental capacity to make decisions.

Mental capacity is a client’s capacity to make a decision.  Decision making requires that a client:

  • understands the decision they are having to make
  • can discuss with us the possible options available to them in a way that shows they appreciate the risk and or benefit of those options
  • understands the impact that a decision, or the lack of a decision, may have on them or their loved ones
  • is able to articulate and discuss all of the above with us.

It is important to note that the level of capacity required isn’t the same in every situation.  For example, to make a Will, the legal test is whether the client knows they are making a Will and the effect of doing so, whether they understand the extent of the assets they are dealing with, whether they comprehend the moral claims which they ought to give effect to, and finally whether they are free of any disorders of the mind that could distort their decision making.

However, when giving instructions to complete Enduring Powers of Attorney, the test is lower and is satisfied if a client understands the broad consequences of granting an enduring power of attorney and can process the relevant information and appreciate the nature and effect of the power they are giving. 

Having these discussions can be difficult.  However if there is a risk that a client’s Will or Enduring Power of Attorney or other decision of a legal nature might be challenged it is wise for the client to obtain a medical certificate in respect of their capacity in consultation with their lawyer.

A failure to take this basic precaution may cause uncertainty, delay, cost and distress later on.

If a client is concerned about this risk it is best to discuss with your legal advisor or general practitioner.

At Harmans we have a specialist seniors team to help you through the process of setting up your legal deeds and dealing with any queries you may have. Contact Phillipa Shaw on 352-2293 to arrange an appointment to discuss your situation.

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