A Practical Guide to Assessing Mental Capacity

This book is aimed for the benefit of legal practitioners who are inexperienced in dealing with mental capacity issues and providing a refresher for those with more experience. The first part of the book deals with legal theory, the second part offers practical guidance in assessing capacity and the appendices provide further resources and precedents. Legal practitioners must be satisfied that their client has the requisite mental capacity to provide instructions and as such, it is an area of law that all practitioners must have some awareness of. For those who do not regularly deal with clients where capacity may be an issue, it can be a daunting prospect to know what steps to take. This book will hopefully provide practical solutions and confidence to practitioners in those situations. ABOUT THE AUTHOR Holly Chantler is an experienced older and vulnerable client solicitor with particular expertise in dealing with complex issues relating to mental capacity, financial abuse, powers of attorney, advance decisions and the Court of Protection (contentious and non-contentious matters). Holly holds a number of professional appointments and qualifications, including as a Court of Protection panel deputy, panel guardian and a director of national organisations Solicitors for the Elderly and the Professional Deputies Forum. She also sits on the Court of Protection Rules Committee and acts as a professional stakeholder for the Ministry of Justice, Office of the Public Guardian and Court of Protection. CONTENTS Part One: Legal Theory Chapter One – What Is Mental Capacity? Chapter Two – Professional Obligations of Legal Practitioners Chapter Three – Who Should Assess Capacity? Chapter Four – When a Capacity Assessment May Be Required Chapter Five – Mental Capacity Act 2005: The Principles Chapter Six – Supported Decision Making Chapter Seven – Mental Capacity Act 2005: Test of Capacity Chapter Eight – Specific Tests of Capacity Chapter Nine – Assessment of Capacity Chapter Ten – Retrospective Assessments Chapter Eleven – Challenging Capacity Assessments Chapter Twelve – Vulnerability Factors Chapter Thirteen – Case Studies Part Two: Practical Guidance Chapter Fourteen – Lack of Capacity Chapter Fifteen – Who Is the Client? Chapter Sixteen – Lack of Capacity – Next Steps Chapter Seventeen – Costs and Fees in the Court of Protection Appendices Appendix 1: Resources Appendix 2: Precedent Attendance Note (Assessment of Capacity Element Only) Appendix 3: Letter of Instruction to an Independent Assessor Appendix 4: Court of Protection Application Flowchart Appendix 5: Deed of Appointment of New Trustee Pursuant to Section 36(1) Trustee Act 1925 Appendix 6: Precedent Section 54 Trustee Act 1925 Order Appendix 7: Precedent Section 36(9) Trustee Act 1925 Order Appendix 8: Precedent Deputyship Order Appendix 9: Orders You Are Seeking (Box 4.1 COP1)