The NHS estimates that over 2,000,000 people lack the mental capacity to make decisions for themselves due to dementia, mental health difficulties, brain injuries or other conditions that may occur even in the prime of life, however just being eccentric does not mean incapacity.
The tests for capacity to make a Will or Lasting Power of Attorney:
What the testator must be capable of understanding:
- The nature and effect of making a Will
- The extent of his or her estate
- The claims of those who might expect to benefit from the testator’s will (both those being included in, and being excluded from, the Will)
What the testator should not have is a mental illness that:
- Influences the testator to make bequests in the Will that he or she would not otherwise have included
- Capacity can be temporary understanding at the time of signing a Will or when the Will is drawn up with subsequent knowledge that a Will is being signed.
- A person making a Lasting Power of Attorney (the donor) must be able to understand and retain information and make decisions for themselves.
There are four criteria set out in the Mental Capacity Act (section 3) as to why a person may not be able to make a decision. The criteria relates to whether the person is able to:-
- Comprehend the information relevant to the decision (which requires the information to have been presented to that person in a way appropriate to their circumstances)
- Retain this information for long enough to make the decision (with the fact that the period of retention may be short is irrelevant to this consideration)
- Use and weigh the information to arrive at a choice (which requires an understanding of the consequences of making a decision one way or the other, or of failing to make a decision)
- Communicate the decision.
An inability to fulfil one of these criteria will result in a finding that the person is unable to make a decision, subject to the proper application of all the principles of the Act.
If Someone loses capacity before having had the chance to make a Lasting or Enduring Power of Attorney an application to the Court will have to be made for what is called Deputyship.
A testator or donor must not be under undue influence from others when making a Will or Lasting Power of Attorney:
- There is never an automatic presumption.
- It may be difficult to prove a case of undue influence and a Court will usually try and find some other reason such as lack of knowledge or approval.