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Who decides if a person lacks capacity?


Under the law, adults are presumed to have capacity to make their own decisions unless it can be shown that they lack capacity.

Just because a person has a disability does not mean that they lack capacity. A person with a disability may be able to make their own decisions without assistance. In some cases a person with a disability may require assistance to clarify issues and choices that will aid decision-making.

A person's capacity to make decisions may depend on the type of decision that needs to be made.

We may not always agree with other people's decisions. What must be determined is whether the person is simply making 'bad' decisions or if they lack capacity to make decisions.

Just because a person lives an eccentric lifestyle, makes poor or controversial personal decisions does not necessarily mean that they lack capacity.

Capacity is a legal issue.

If there is disagreement about a person's capacity, a capacity assessment should be sought. These assessments could be performed by a clinical neuropsychologist or other trained health professional, such as a geriatrician or psychiatrist.

Have at look at the  capacity useful links for more information.


An example case study

Mrs Griffin appointed her daughters Jean and Susan as her enduring guardians. Three years ago Mrs Griffin developed dementia. Jean and Susan disagree about their mother's capacity to make her own decisions in relation to the services that she receives at home. Jean believes she should start making decisions on her mother's behalf as her enduring guardian. Susan acknowledges that her mother's dementia is getting worse but feels her mother can still make her own decisions. Jean and Susan request that Mrs Griffin's doctor assess her capacity to make her own decisions. The doctor is satisfied that Mrs Griffin lacks capacity to make her own decisions about what services she needs. Susan is happy that Mrs Griffin's capacity to make her own decisions has been properly assessed. Susan and Jean begin making decisions as Mrs Griffin's enduring guardians.


The 'capacity assessment' principles  

There are six principles to apply when assessing a person's capacity. The principles protect the rights of the person being assessed. You should:

start by assuming that the person has the capacity to make their own decision

understand that because the person cannot make a decision in one area of life does not mean that they can't make decisions in all areas of their life

not assume that the person lacks capacity because of age, appearance, disability or behaviour

focus on the person's ability to make a decision, not whether the decision that they make is good or bad

respect the person's privacy

make sure that the person is getting the support that they need to make their own decisions.