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The Mental Capacity Act 2005 (MCA) was established by the Court of Protection with the aim to protect individuals that lack mental capacity. A person (‘P’) is assumed to have capacity until an assessment is completed that suggests otherwise. The MCA set out a two stage test for assessing capacity –
It is important to note that mental capacity is time and decision specific and so it may be that P is able to make decisions/input about certain financial decisions but not all. To determine whether a person is able to make a decision, the MCA sets out the following to be taken into consideration:
Where it is believed that a family member or friend needs a Deputy to manage financial affairs, a COP3 assessment of capacity will have to be completed by a specialist capacity assessor so that the court can be satisfied that a Deputyship order is the least restrictive option.
October 16, 2020
Natalie is a Partner and Solicitors in the Court of Protection department.