Capacity

Capacity

Mental capacity is the ability to perform a specific juristic act by understanding and making a decision to do something that has legal consequences, such as make a Will, a power of attorney or a gift, or to provide consent for something. Mental incapacity is the inability to do something or to provide consent for something by reason of a mental disorder or disability. Lack of mental capacity is not always constant; it may fluctuate. It will also vary according to the function that requires the decision or consent and, for this reason, mental capacity is referred to as being 'function specific'.

The legislation governing mental capacity in England and Wales in the Mental Capacity Act 2005 (MCA 2005). For an introduction to the subject of mental capacity and the provisions of MCA 2005 and the accompanying Code of Practice, see Practice Notes: Mental capacity—an introduction and Mental Capacity Act 2005—the Codes of Practice.

Mental capacity—an introduction

Mental capacity is an issue that must be to the forefront of a practitioner's mind in everything they do, particularly in respect of Wills whether that be in connection with

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