Is it legal to assume someone doesn't have capacity to manage their finances?

For many of us, the protection of those we hold dearest is our biggest concern and becomes even more vital when those loved ones are vulnerable either through age or health issues.

Questions often arise over the legality of helping others to manage their everyday lives, including their finances, and how the law can be applied to provide genuine support, as well as provide protection to the most vulnerable.

In the next of our, ‘Is it legal to…’ series, we explore the law surrounding capacity.

Is it legal to assume someone doesn’t have capacity to manage their finances?

Issues surrounding capacity can be extremely complicated. However, the law is clear…

Under s.1 of the Mental Capacity Act 2005, it states that ‘a person must be assumed to have capacity unless it is established that they lack capacity‘.

How do I establish whether they lack capacity?

Your loved one’s GP or social worker will be able to perform a capacity assessment to determine whether they lack capacity. If for any reason they are unable to do so, you can arrange for a private assessment.

The capacity assessment is carried out in two stages:

The Functional Test – is the person unable to make a particular decision?

The Diagnostic Test – is the inability to make a decision caused by an impairment of, or disturbance in the functioning of, a person’s mind or brain.

The Mental Capacity Act states a person is unable to make their own decisions if they cannot do one or more of the following:

1. Understand information given to them.
2. Retain that information long enough to make a decision.
3. Weigh up the information.
4. Communicate their decision (talking, sign language, blinking etc).

If you would like advice concerning the capacity of a loved one, please contact our experienced Wills, Trusts & Probate team.

They are experts in helping families plan for their own personal circumstances concerning vulnerable family members.

Please call them on 01603 620508 or complete the form below with your enquiry. More details of their services are also available on their designated website pages, please click here.