Mental Health Issues

Mental Health and Legal Capacity

We understand that clients experiencing mental health challenges may need extra time, clarity, or support when preparing their Wills. Under the Equality Act 2010, we provide accessible and confidential services to ensure every client can make informed estate decisions with full understanding and dignity.

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.

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Mental Capacity Requirements by Document

Understanding mental capacity is essential when making Wills, Powers of Attorney, or other legal documents. Click each section below to learn more.

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).

Capacity for creating an LPA is assessed under the Mental Capacity Act 2005 (MCA 2005).

This is a two-stage test:

  • 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)?

  • 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:

  • The purpose of the LPA and the scope of authority granted to the attorneys.

  • When the powers will come into effect (immediately or only when they lack capacity).

  • 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:

  • The donor understands the purpose of the LPA and the scope of the attorney’s authority.

  • The donor has not been subject to undue pressure.

  • There’s no other reason why the LPA shouldn’t be registered.

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:

  • Understand the nature and effect of the transaction (that they are giving away property).

  • Understand the extent of the property being given away.

  • 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.

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Consequences and Challenges

Circumstances for Challenging Mental Capacity

Mental capacity could be challenged if there is evidence suggesting that the person:

  • Suffered from a mental disorder or illness (like dementia, severe depression, or psychosis) at the time the document was executed.

  • Was under the influence of medication or severe pain that affected their cognitive functions.

  • Made an unnatural or irrational disposition (e.g., disinheriting close family without explanation in a will).

  • Lacked a full understanding of the contents, effects, or extent of the property involved.

  • Was subject to undue influence or coercion, although this is a separate ground for challenge, it often goes hand-in-hand with diminished capacity.

  • The correct legal test for capacity was not applied when the document was drafted.

Consequences of Lacking Mental Capacity

If a court (such as the High Court or the Court of Protection) decides that the person did not have the requisite mental capacity at the time the document was executed, the consequences are severe:

Will

The Will is declared void (invalid). The deceased's estate will be distributed according to the previous valid Will (if one exists), or, if none exists, under the rules of intestacy.

Power of Attorney

The Lasting Power of Attorney is declared invalid and cannot be registered or used. If a decision needs to be made for the person, an application may need to be made to the Court of Protection for a Deputy to be appointed.

Deed of Gift

The Deed of Gift is declared void. The property or money that was gifted must be returned to the person's estate (or to the control of their deputy/attorney if they are still alive).
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Leading Court Cases on Mental Capacity

Jurisdiction:

UK 🇬🇧 Supreme Court

Case Name:

Banks v Goodfellow (1870)

Principle Established:

Established the common law test for testamentary capacity (capacity to make a Will), which remains the standard in England and Wales.

Jurisdiction:

CANADA 🇨🇦 Supreme Court

Case Name:

Starson v. Swayze (2003)

Principle Established:

Addressed the capacity to refuse medical treatment. The Court affirmed that capacity is decision-specific and a person must be able to understand the information relevant to the treatment and appreciate the reasonably foreseeable consequences of consenting or refusing treatment.

Jurisdiction:

USA 🇺🇸 Supreme Court

Case Name:

O'Connor v. Donaldson (1975)

Principle Established:

A landmark civil rights case establishing that a state cannot constitutionally confine a nondangerous individual who is capable of surviving safely in freedom, even if mentally ill. This case touches on fundamental rights tied to mental competence and freedom.

Jurisdiction:

GHANA 🇬🇭 Supreme Court

Case Name:

In re: Effah (Decd); Effah v. Effah (1992)

Principle Established:

A case involving a challenge to a will where the Supreme Court of Ghana addressed the requirements for a valid will, including the testator's sound disposing mind (mental capacity) at the time of execution, aligning with common law principles (similar to Banks v Goodfellow).