You may have heard of the term ‘mental capacity’ but still don’t know exactly what it means. You may also know that it can be on a temporary or permanent basis. It often features when preparing your Will, or managing your affairs, so we want to explain the legal definition, as well as exploring some potential causes of specifically temporary capacity issues.
There are two sections of the Mental Capacity Act 2005 that you should take into consideration when trying to understand temporary capacity issues, those being Sections 2 and 3.
Section 2 defines a person has a lack of 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’. It also states that the aforementioned impairment or disturbance is regarded as a loss of capacity regardless of its permanence, or in this case, temporariness.
Section 3 describes the inability to make a decision as the inability to:
- Understand the information relevant to the decision;
- To retain that information;
- To use or weigh that information as part of the process of making the decision; or
- To communicate his decision (whether by talking, using sign language or any other means).
The NHS defines capacity as ‘the ability to use and understand information to make a decision, and communicate any decision made’, and if you wish to understand mental capacity from a medical standpoint, follow the link to their page on it here. Considering these definitions, below are some potential reasons behind a temporary loss of capacity.
Consciousness – Wakefulness and Awareness
Whether you are unconscious or barely conscious, you may have a temporary lack of capacity. This is due to reduced or non-existent awareness, responses and reactions to your surroundings compared to full consciousness. This may be caused by an accident, illness, treatment for an illness, being under anaesthetic or being under the influence of drugs and alcohol.
Short-Term Memory Loss – Forgetting Recent Experiences
Short-term memory loss has a broad set of causes, including but not limited to:
- Deprivation of oxygen to the brain;
- Alcohol or drug use;
- Injury or trauma to the head;
- Anxiety and depression;
- Epilepsy;
- Seizures;
- Stress; or
- Insomnia.
In the circumstance that you have short-term memory loss, you are naturally unable to retain information, which according to Section 3 of the Mental Capacity Act 2005, is a descriptor of temporary capacity loss.
Mild Cognitive Impairment – Declined Cognitive Function
Mild cognitive impairment (MCI) is commonly described as a stage of declining cognitive function, with worse symptoms than memory loss through aging, but with less severe symptoms than dementia. It has a number of causes, including:
- Depression, stress and anxiety;
- Vitamin deficiencies;
- Thyroid disorders;
- Autoimmune conditions;
- Infections;
- Side effects from medication;
- Sleep disorders such as sleep apnoea; or
- Early stages of Alzheimer’s disease or another type of dementia.
MCI uses very similar language in its definition as in Section 2 of the Mental Capacity Act 2005 in its definition of a temporary lack of capacity, and of course constitutes as such.
Delirium- Sudden or Acute Confusion
Someone who is delirious simply isn’t in the correct state of mind to be considered to have capacity. As is the case with many of these conditions, there are several factors that contribute to a sudden bout of confusion, including:
- An infection, such as a urinary tract infection;
- Alcohol or drug abuse;
- Certain types of prescriptive medicine;
- Severe asthma attacks; or
- Low blood sugar levels in people with diabetes.
Why this is Important
There are numerous requirements so that a Will you prepare is valid in the UK, one being that, at the time of making the Will, the person making the Will must have full capacity. This is such an important requirement, because should the person making the Will not have full capacity, the Will may not be valid. If the person making the Will did not have capacity, the claimant may be able to justify that the Will is invalid on this basis. To ensure that your Estate is distributed in accordance with your wishes, it is important to mitigate this potential risk, and having full capacity is a necessary step in doing so.
If there are doubts surrounding a person’s capacity at the time of making a Will, the individual should be assessed by somebody with the ability to do so, such as a doctor or other medical professional. If you have doubts over a Client’s capacity, consult the capacity requirements set out in the Mental Capacity Act 2005:
- Does the person have an impairment or disturbance in their mind or brain, due to illness or external factors?
- Does said impairment or disturbance affect the person’s ability to make specific, necessary decisions?
If you lose capacity, whether that be temporarily or permanently, it’s worth considering the appointment of an Attorney or Attorneys. This can be for your Finances and Property or Health and Welfare, or both. LPAs give your Attorneys the power to make these decisions on your behalf, depending on your choice of LPAs. This only gives them power when you lack capacity, meaning you may create an LPA and not find use for it for many years. However, because it gives them this power when you are unable to take action yourself, it’s imperative to appoint Attorneys that you trust to make hugely important decisions for you.
If you wish to discuss your LPA, we offer free initial consultations. If this is an option you would like to pursue, please contact us.
