MENTAL CAPACITY ASSESSMENT TOOL

FOR DECISION OF:

Capacity to Make a Lifetime Gift

Correct as of 31/10/2017

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CONTENTS

Guidance Notes

-Includes guidance on use of the Assessment Tool.

Part 1: Capacity Assessment Tool: Capacity to Make a Lifetime Gift

-Form to be completed.

Part 2: Further Guidance

-Provides guidance on Schedule 1 and 2, as well as other general guidance.

Part 3: Guidance to the Assessor

-Includes guidance on how to record your assessment and conclusions.

INSTRUCTIONS

NOTE: Throughout this Tool, and particularly the form for completion, there are pop-up guidance notes and prompts. Before starting, ensure that these are displayed:

Guidance Notes: Read first to determine whether you wish to use this Capacity Assessment Tool, to help guide you with your capacity assessment. Detach these first two pages before sending to the assessor.

Part 1: Fill out the form to be sent to the assessor.

Part 2: Further guidance to be referenced in your completion of the form and enclosed in send to the assessor.

Part 3: Do not fill this section in. This should be sent to the assessor with your form and the guidance (parts 1 & 2), and completed upon receipt.

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--READ--

Guidance Notes

Please read these guidance notes, which will assist you in determining whether you wish to use this Capacity Assessment Tool, to help guide you with your capacity assessment.

This capacity assessment tool is intended to be used by legal practitioners in giving instructions to medics, healthcare professionals or others to carry out a contemporaneous assessment of an individual’s capacity at law to make a particular decision. Although there may be circumstances in which the instructions and the resulting assessment are referred to for evidence on capacity in court proceedings or where the assessment is intended to be used in non-contentious proceedings in the Court of Protection, the tool is not primarily intended to give instructions to experts for reports, statements or joint statements provided to the court in contentious proceedings.

Prior to the coming into effect of the Mental Capacity Act 2005, on 1 October 2007, the common law on capacity attempted to bring the “paternalistic attitude” to those who lack capacity into line with more modern thinking.

The Statutory Code of Practice issued with the Mental Capacity Act 2005 provides some guidance on how the statutory test and the common law tests will (or will not) align.

4.31 - 4.33 deal with this question, and state “the Act’s new definition of capacity is in line with the existing common law tests, and the Act does not replace them”. It also confirms that the 2-stage test for capacity within the Act is “for the purposes of this Act”.

There has been some consequent uncertainty which test is appropriate and in what circumstances.

The prevailing view is that the court, in circumstances where it decides it will apply the common law test, is free to adopt elements of the statutory test if it so chooses. However, the refinement on this set out in Re MM, Local Authority X v MM (an adult) [2007] EWHC 2003 is that a judge sitting in the Court of Protection and exercising the statutory jurisdiction under the Mental Capacity Act 2005 must apply the statutory test, but that judges sitting in other courts and deciding cases on certain capacity issues will apply the common law test, but can adapt that common law test by including elements of the statutory test if they feel that is appropriate.

It seems reasonably clear that the particular decisions where existing case law should form the basis of capacity assessment in courts other than the Court of Protection are:

  • Capacity to make a Will.
  • Capacity to make a gift.
  • Capacity to enter into a contract.
  • Capacity to litigate.
  • Capacity to enter into marriage.

The Code of Practice paragraph 4.32 does not make it clear whether this is an exhaustive list.

The capacity assessment tool produced is based on the statutory test, but includes reference to relevant case law, which may assist (in particular) with identifying the information relevant to the decision, as referred to within the statutory test.

If the purposes of the practitioner obtaining this capacity assessment is to ascertain whether an application to the Court of Protection, a Best Interests Decision or Deprivation of Liberty safeguarding Order is required, this tool is appropriate.

If the practitioner is seeking to establish the client’s capacity to decide an issue that would, in the event of lack of capacity, either be decided on by the Deputy/Attorney or not progress at all (for example capacity to agree to a divorce after two years of separation) then, notwithstanding that this may fall outside the boundaries of what is encompassed by the phrase “for the purposes of this Act”, this assessment tool still provides a sensible and practical means of assessing capacity.

If the practitioner is seeking a contemporaneous assessment of capacity to undertake any of the decisions detailed in the bullet points above to which the common law tests are stated to apply, please note that the relevant common law is referred to within the assessment tool, but the practitioner must decide for themselves whether an assessment based on the Mental Capacity Act 2005 combined with the common law test is appropriate for the purpose for which the capacity assessment is being obtained.

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Part 1: Capacity Assessment Tool: Capacity to Make A Lifetime Gift

1Who is being assessed?

Full Name:
Nickname:
Address:
Date of Birth:

Complete details as stated. The Assessor may find it useful to know what name the client is usually known by, whether a nickname or abbreviation.

2Why is this assessment needed?

Brief explanation of the client’s goal in instructing you. This may include confirmation as to how the assessment will be used, examples as follows:

•There are no on-going court proceedings, but due to the type of decision in question it is important to have expert evidence about [CLIENT] mental capacity at the present time.

•It is likely that a non-contentious application will be made to the Court of Protection relating to [CLIENT]. We have no reason to believe that the application will be opposed, but it is important that the court has clear evidence that [CLIENT] lacks the mental capacity to decide the matter for him/herself.

•These instructions do not constitute a request for an expert report, but your assessment is likely to be used in contentious Court of Protection proceedings. You may be required to attend some of the related hearings to answer questions about your observations, any tests administered and your conclusions.

Your report is likely to be disclosed to the defendant/the client/the litigation friend.

3What decision or decisions does the capacity assessment relate to?

Capacity to make a gift of […………………………..] to [……………………………..]

Make sure you are using the correct pro-forma.These are available for the following decisions, with the relevant case law referred to within the tool.

  • Capacity to create a Lasting Power of Attorney.
  • Capacity to litigate.
  • Capacity to make a gift.
  • Capacity to enter into a Pre-nup.
  • Capacity to manage property and finance.

4Legal test:

In order to ascertain whether the client has capacity you will need to consider the following:

  • Mental Capacity Act 2005 2-stage test (see Schedule 1).
  • Case law on capacity to make this decision (see Schedule 2, which includes some additional general guidance).

5Summary of personal circumstances:

Marital Status:
Immediate Family:
Current living arrangements:

Include details described in this section, whether or not the information is relevant to the decision to be made – this background information is likely to assist the Assessor if they wish to use memory tests or discuss general background as part of the assessment process.

6Additional information relevant to the particular decision:

Please see Schedule 2 for reference in Part 3, on page 12.

Some of the information that is relevant to the specific decision may be referred to in case law and general guidance in Schedule 2, so you may wish to refer to this.

Otherwise, include the information that the client would need to understand, retain and weigh up under the statutory test.

If the decision involves financial matters, provide information about the client’s finances and any consequences of the specific decision in issue.

7Points to consider when assessing capacity (including long and short term consequences):

Provide any information on diagnosis of any condition that could affect capacity, if not already covered, and any medication that could affect capacity.

Describe the optimum time and place for an assessment or times/places to avoid. Warn the Assessor if the client has a tendency to obsess, especially over minor issues. Provide details of any impediments to communication or communication aids needed.

Other information may include details of the decision the client has communicated to you on the particular matter, the complexity of issues, the value of relevant property and information about the client’s vulnerability to persuasion and/or undue influence.

8Any personal observations from instructing solicitor or person referring the assessor should be aware of:

Your own views and/or comments may be useful to the Assessor, particularly if this is a client that you have met before and you perceive a change in the client’s capacity. If the client is making a decision that seems out of character, rash or contrary to previous instructions, include this information – the statutory guidance included will direct the Assessor how much weight it is appropriate to give to this.

9Who has requested this assessment?

Example responses:

  • Our client in this matter is [CLIENT] who is aware that we have asked you to prepare this assessment.
  • Our client in this matter is [PARTY] who is [explain connection to the client and their interest in the matter e.g. person’s spouse who intends to apply to become his/her Deputy].
  • The Court of Protection has directed that evidence about [CLIENT’S] capacity to [issue at stake] be filed within the current proceedings.

10Have there been any previous capacity or medico-legal assessments?

Example responses:

  • We are not aware of any previous capacity or medico-legal assessments.
  • Copies of the previous capacity/medico-legal assessments are enclosed.
  • We are aware that previous capacity/medico-legal assessments have been carried out by [names and dates] but we do not have copies.

11Are any other capacity assessments for the same or other decisions being carried out?

Example responses:

  • There are no other capacity assessments being commissioned in respect of this matter.
  • Capacity assessments have also been requested from [name] because [explain the reasons e.g. on behalf of another party, in respect of another issue etc].
  • The defendants in the compensation claim have commissioned a capacity assessment but this has not yet been completed/disclosed.

12What is the anticipated outcome, if the client lacks capacity to make this decision?

This information may form a formal part of the assessment, in identifying the client’s appreciation of long or short term consequences. In any event, it may assist theAssessor to understand what will happen if the client lacks capacity, and therefore the seriousness of the consequences.

13In the opinion of the instructing solicitor/person referring is there any alternative to that anticipated outcome that is less restrictive to the future options of the client?

This section may not always be relevant, but if you anticipate, in the event that the client is assessed as lacking capacity, that a decision may need to be taken by the court or in a best interest’s environment, include any suggestions as to the least restrictive option.

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--REFERENCE--

Part 2: Further Guidance

SCHEDULE 1

There is a 2-stage test to assess capacity:

  • Is there an impairment of or disturbance in the functioning of the person’s mind or brain?
  • Is the impairment or disturbance sufficient that the person lack the capacity to make the particular decision?

The second stage of the test (functional test) dictates that a person is unable to make a decision if they cannot:

  • Understand information about the decision to be made.
  • Retain that information in their mind.
  • Use or weigh-up the information as part of the decision process.
  • Communicate their decision (whether verbally or by other means).

If, on the balance of probabilities, a person cannot satisfy any of these four aspects, then they lack capacity in relation to that decision.

In drawing your conclusions you must apply the five statutory principles. These are set out below, together with the statutory provisions which cover the 2-stage test.

Section 1: The principles

(1)The following principles apply for the purposes of this Act.

(2)A person must be assumed to have capacity until it is established that he lacks capacity.

(3)A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4)A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5)An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6)Before the act is done, or the decision is made, regards must be had to whether the purposes for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Section 2: People who lack capacity

(1)For the purposes of this Act, 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.

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

(3)A lack of capacity cannot be established merely by reference to:

(a)A person’s age or appearance; or

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

(4)In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

(5)No power which a person (“D”) may exercise under this Act:

(a)In relation to a person who lacks capacity, or

(b)where D reasonably thinks that a person lacks capacity, is exercisable in relation to a person under 16.

(6)Subsection (5) is subject to Section 18(3) [powers re property and affairs].

Section 3: Inability to make a decision

(1)For the purposes of Section 2, a person is unable to make a decision for himself if he is unable:

(a)To understand the information relevant to the decision;

(b)to retain that information;

(c)to use or weigh that information as part of the process of making the decision; or

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

(2)A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him is a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3)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.

(4)The information relevant to a decision includes information about the reasonably foreseeable consequence of:

(a)Deciding one way or another; or

(b)Failing to make a decision.

SCHEDULE 2

Case Law

Re Beaney

Where a lifetime gift is made of the donor’s only valuable assets, a high degree of understanding on the part of the donor is required.

Sutton v Sutton

A gift of a person’s principal asset of value requires a high degree of understanding of the gift for the transaction to be valid.

Singellos v Singellos

The mental capacity required to enter into lifetime transactions depends on the nature and complexity of the transaction. A lifetime gift her of the home and 5 valuable investment properties total value £5.4 million require a high degree of understanding. The testamentary rule in Parker v Felgate applies equally to inter vivos dispositions.

Parker v Felgate

If capacity exists at the time instructions were given [for the Will] and the [testator] understood at the time the documents were signed only that she understood that she was signing document that gave effect to her earlier instructions, the test for capacity is satisfied.

Other general guidance

One of the fundamental aspects of the assessment of capacity is the identification of the information relevant to a decision in respect of which the functional test must be satisfied. Neither the MCA 2005 nor the Code of Practice set out the relevant information for particular types of decision, but it does need to be identified when an assessment is made. If the instructions in this assessment for do not assist you to identify the relevant information, please ask for further clarification. The court has emphasised that the threshold for the relevant information should not be set so high that people without mental impairment would struggle to understand and use it to make a decision. It is not necessary for the person to understand every aspect of the issue, instead they need a “broad, general understanding of the kind that is expected from the population at large”.

The MCA 2005 requires that the individual is given all possible assistance to understand and use the relevant information. The individual being assessed should know what the decision at issue is, as part of the assessment procedure. They should be provided with the relevant information and helped to understand it.

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--ASSESSOR TO COMPLETE--

Part 3: Guidance to the Assessor

The Person Being Assessed

As you know, Section 1(3) of the Mental Capacity Act 2005 provides that a person is not to be treated as unable to make a decision unless all practicably steps to help him to do so have been taken without success, and therefore it is important to seek to ensure that your assessment is structured to maximise our client’s participation.