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 –

  • Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors such as alcohol and drug use?
  • Does the impairment mean that the person is unable to make a specific decision when they need to?

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:

  • Can the person :
              • Understand the information relevant to the decision
      • Retain the information
      • Use or weigh up that information as part of the process of making the decision

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.


For more information call our Court of Protection team to discuss your options on 0344 3260 049 or email to book a free information session at any of our offices.