Mental Health Issues
Mental Health and Legal Capacity
What does the law mean when it requires a person to have "Mental Capacity"?
When you sign important legal documents, like a Will or a Power of Attorney, you must have the mental capacity (the ability to make a decision) to do so. This helps make sure your decisions are legally sound. The rules for proving mental capacity are different for each document.
Mental Capacity Requirements by Document
1. Making a Will (Testamentary Capacity)
Testamentary Capacity
To make a valid Will, you must understand four key things at the time you sign it:
- What a Will is and what happens when you die (that it gives away your property).
- What you own and the value of your possessions (your “estate”).
- Who should benefit from your Will (like family or friends) and who you are leaving out.
- That no mental illness is preventing you from making these decisions clearly.
How to Prove Capacity:
For elderly or ill people, the best way to prevent a challenge to your Will later is to follow these steps:
Get a Doctor’s Check:
Have a medical professional (like a psychiatrist) examine you to confirm you understand the Will.
Doctor as Witness:
The doctor should either witness the signing of the Will or write a letter at that time confirming your capacity.
Detailed Notes:
Your solicitor should write down the questions they asked you and your exact answers to show your clear understanding.
What Happens If a Court Decides I Lacked Mental Capacity for making a Will?
If a court rules that you did not have the necessary mental capacity when you signed the document, the consequences are serious:
The Will is cancelled (void).
Your property will then be shared out either according to your previous valid Will or, if you had no previous Will, according to the rules of intestacy (which are fixed by law).
2. Lasting Power of Attorney (LPA) and Power of Attorney (POA)
Capacity for creating an LPA is assessed under the Mental Capacity Act 2005 (MCA 2005).
This is a two-stage test:
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Stage 1: Diagnostic Test: Does the person have an impairment or disturbance in the functioning of the mind or brain (e.g., a medical condition like dementia)?
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Stage 2: Functional Test: Is the person unable to make a specific decision at the time it needs to be made because of that impairment?
To have capacity for an LPA, the donor must be able to understand, retain, use or weigh, and communicate the relevant information about:
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The purpose of the LPA and the scope of authority granted to the attorneys.
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When the powers will come into effect (immediately or only when they lack capacity).
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The power to revoke the LPA.
How to Prove Capacity:
The LPA form includes a “Certificate Provider” section (usually a solicitor, barrister, or a registered medical practitioner) who must sign to confirm that:
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The donor understands the purpose of the LPA and the scope of the attorney’s authority.
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The donor has not been subject to undue pressure.
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There’s no other reason why the LPA shouldn’t be registered.
3. Making a Deed of Gift
Capacity for making a substantial gift is also assessed under the Mental Capacity Act 2005.
The required level of understanding is higher for a gift than for an LPA, especially if the gift is large relative to the person’s estate. The person must be able to:
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Understand the nature and effect of the transaction (that they are giving away property).
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Understand the extent of the property being given away.
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Grasp the consequences of the gift, particularly for their future financial needs or for those who would otherwise inherit the property.
How to Prove Capacity:
For substantial gifts, it is often prudent to obtain a contemporaneous assessment and report from an expert medical practitioner to confirm capacity.
Consequences and Challenges
Circumstances for Challenging Mental Capacity
Mental capacity could be challenged if there is evidence suggesting that the person:
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Suffered from a mental disorder or illness (like dementia, severe depression, or psychosis) at the time the document was executed.
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Was under the influence of medication or severe pain that affected their cognitive functions.
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Made an unnatural or irrational disposition (e.g., disinheriting close family without explanation in a will).
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Lacked a full understanding of the contents, effects, or extent of the property involved.
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Was subject to undue influence or coercion, although this is a separate ground for challenge, it often goes hand-in-hand with diminished capacity.
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The correct legal test for capacity was not applied when the document was drafted.