Who decides if I have capacity?
- Kelly Collier
- Jun 17
- 3 min read
Oh that question! I think it is the one I am asked more than any other! It is loaded with sensitivity, apprehension and misunderstanding. Not to mean the worry, emotion and fear that also arises.
What are we deciding?
Before we look at who decides we need to be clear on what it is we are deciding. Capacity is the ability to understand information relevant to a decision which needs to be made, the ability to weigh that information up, and retain the information for long enough to process what has been heard and seen. It also involves the ability to communicate the decision which has been made. If you can do all of these things you have capacity!
When do I have capacity?
Capacity isn't all or nothing. It's not black and white. More often it is that murky grey area in the middle which is constantly changing and shifting according to what is going on in your world. You might have capacity to decide whether you want cheese and tomato in your sandwich or cheese and pickle but may not have capacity to make a complex business decision involving a company merger worth millions. You may lack capacity if you are unwell or haven't had enough sleep. There are so many things that go into the capacity pot. It's about the decision you need to make, there and then, in that specific moment. It's about giving you the time and space you need to process information.
Who decides if I have capacity?
A doctor is not the person who decides whether you have capacity or not. It may be a doctor if it involves a medical decision. It could be a social worker for care decisions. It could be a lawyer (like me) for wills or powers of attorney. It could be a family member who you have appointed to act as your attorney or deputy. But, these people cannot just simply go off an make decisions without governance or supervision. There are tests they must follow for certain decisions but generally, every day, they must follow the legal framework set out in the Mental Capacity Act 2005 and the Mental Capacity Act 2005 Code of Practice. I have included both links to these below.
If, for example you visit me to make a will I have to see whether you:-
understand what a will is
know what assets and liabilities you own
understand you may want to leave things to and their relationship to you
understand what could happen if you leave people out of your will
and ensure that no-one is forcing you to make the will. If I do not think you understand these issues then I can say that I do not believe you can make a will.
What happens if I don't have capacity?
If you don't have capacity this is when your attorney or deputy will step in and act for you but this may be a process of gradual involvement according to where your capacity levels are. A deputy or an attorney cannot simply do as they wish they have to act in your best interest, always give you every opportunity to make a decision for yourself, act in a way which is the least restrictive for you and ensure that any decision they make is backed by evidence and thought out reasoning. If you do not have capacity the best interest decision making process kicks in and you may find that people who don't know you are responsible for making decisions about you. Not a situation any of us wish to find ourselves in.
What to do next?
Protecting yourself for the possibility of lack of capacity is the most important thing you can do for you and your family (as well as make your will). Capacity is about dignity. It's about making sure you have a voice when you may be unable to make decisions about yourself.
If you need to have a difficult conversation about your capacity, how to protect it for the future and what to say to your family Argo is about to help with this. If you are worried about your capacity or someone you love. Argo is here to help with that. Reach out. Ask questions and get support. Capacity is not a line in the sane; it's a moment, a conversation and, sometimes, a bit of courage!
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