The presumption of capacity

For those of us who work in the area of capacity we know that nothing is black or white. Most of us work in a murky world of grey. For those that live with someone who has a capacity issue their world too is murky grey with some brighter patches and some dank dark patches.


Capacity affects everything and there are so many decisions and so many different contexts in which capacity is relevant in daily life.


The law relating capacity is now held within the Mental Capacity Act. There are five principles within the Act which are meant to act as a moral compass when dealing with people living with capacity issues. The starting point for looking at capacity is the first principle under the Act which states a person is presumed to have capacity unless it is proven otherwise. Just because there is this presumption of capacity it does not mean that you should not investigate the situation in relation to capacity any more than you should not investigate capacity if it is believed that someone does not have it. In simple terms you must investigate the position regardless of whether or not you believe capacity is present to demonstrate whether it is or whether it is not. After all, it is not for the person needing to make a decision

to prove they have capacity but the person raising the doubt.


So just to make it clear no-one should assume that someone does not have capacity to make decisions. And that is that. We just wanted to be absolutely clear to start with!


Authorised by CILEx Regulation for

Probate Authorisation Number 2168365

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