How do you deal with mental capacity issues in legal terms?

As people age the onset of diseases like Alzheimer’s and generalised dementia can call into question whether a person continues to have mental capacity. If they need to sign legal documents, drive or continue to work and it is questionable if they still have mental capacity there are a number of steps in legal terms that may need to be taken.

In general the legal mechanisms which are in place to cope with a person’s lack of mental capacity are a power of attorney or a guardianship. A power of attorney allows another person to deal in the financial affairs of the giver of the power and a guardianship allows the guardian to make decisions about the person’s medical care and living arrangements. However, the person needs to sign these documents before they lose the mental capacity to understand what they are signing.

If a person loses capacity for this, then the necessary action to be taken is to apply for a guardianship order from the guardianship tribunal appointing a guardian. It is necessary to obtain reports from at least 2 professionals on the mental capacity of the person concerned in order that a guardianship order may be granted.

Determination of Capacity

The determination of whether a person has mental capacity or not is ultimately in the hands of the lawyer that signs the certificate witnessing a document saying that the person has mental capacity. Or if a document is signed and a certificate such as this not required, the document may be challenged at a later stage if the person’s capacity was in question at the time of signing the document. In most cases, a lawyer called upon to make a determination of the capacity for signing a document will rely on the advice and assessment of a medical professional such as a psychiatrist familiar with making these types of assessments.