What is mental capacity?

The current restrictions imposed on the UK due to COVID-19 have been challenging for most. For some people, their mental health has been severely impacted by loneliness, lack of structure, financial pressures and fears of what the future may bring. Also, the constant overflow of negative press on COVID—19 is causing immense stress and anxiety for many people. Although there are charities around the UK that offer support for those struggling with their mental health on an everyday basis, demands on these charities mean that they are struggling to provide the services that they would like to provide.

On 29 May 2020, the Government confirmed the identity of the first recipients of its £5million fund to support mental health organisations to cope with the impact of the Coronavirus. The announcement means that there will be a cash boost to help existing services respond to the global pandemic and protect the wellbeing of vulnerable people and those struggling to cope with their mental health. Some of the charities due to receive funding from the government include Mind, Ambitious about Autism, the LGBT Foundation and Campaign Against Living Miserably. Mental Health Minister Nadine Dorries said that “this epidemic has had huge consequences for us all, but for some it has been especially difficult, leading to loneliness, anxiety and other mental health challenges”. With this new funding, organisations will be able to help more people every day cope with their mental health and the struggles that come along with it. Lawyers typically focus on mental capacity and whether someone has mental capacity to enter into a specific transaction. At Freeths, we have many vulnerable clients who, because of their circumstances, may be in need of special care, support or protection and we aim to provide and arrange for all of the care that our clients require. Which is why we pride ourselves on being able to help those suffering with mental illnesses or anyone who may be vulnerable. We strive to establish what vulnerable people can understand and what they have capacity to do. Mental capacity is decision specific. A person may have capacity to sign their own Will may not be able to cope with the pressure and stress of dealing with their property and affairs more generally. It is important that each person is treated as an individual and that the correct test of capacity is applied depending on what the person is seeking to do. Recent cases that we have worked on include:

• A client who did not have capacity to manage his own affairs but did have capacity to sign his own Will;
• A client who did have capacity to manage his own affairs but did not have capacity to conduct litigation on his own behalf;
• A client who had been judged to have lost capacity earlier in life but has regained capacity and was able to choose his own attorneys who could assist him to manage his own affairs.

A mental capacity assessment is important as it will determine whether a person has an impairment or disturbance in the functioning of their mind or brain. It will look at whether the impairment means that the person is unable to make specific decisions at the time that it needs to be made. It is important that these assessments are carried out so that the correct support and guidance can be given. Often we will engage a third party professional to conduct the assessment for us, which will be a psychiatrist, psychologist, other mental health professional or a GP. In order for our client to achieve what they wish, we outline the specific test for the healthcare professional so that they know the legal framework to accurately assess capacity for the decision in hand. In all cases, we look to support our clients to empower them to take control of their lives as much as possible. We cautiously welcome the government's announcement but are aware that care and time are required in order to support people living with mental illness, degenerative disease or other vulnerabilities. If you have any questions regarding mental capacity assessments or any issues I have raised in this article, please contact louise.lewis@freeths.co.uk or Ella Weaving at ella.weaving@freeths.co.uk . Alternatively, you can call us on 01865 781 100.