A Practical Guide to Assessing Mental Capacity

This book is aimed for the benefit of legal practitioners who are inexperienced in dealing with mental capacity issues and providing a refresher for those with more experience. The first part of the book deals with legal theory, the second part offers practical guidance in assessing capacity and the appendices provide further resources and precedents.Legal practitioners must be satisfied that their client has the requisite mental capacity to provide instructions and as such, it is an area of law that all practitioners must have some awareness of. For those who do not regularly deal with clients where capacity may be an issue, it can be a daunting prospect to know what steps to take. This book will hopefully provide practical solutions and confidence to practitioners in those situations.ABOUT THE AUTHORHolly Chantler is an experienced older and vulnerable client solicitor with particular expertise in dealing with complex issues relating to mental capacity, financial abuse, powers of attorney, advance decisions and the Court of Protection (contentious and non-contentious matters). Holly holds a number of professional appointments and qualifications, including as a Court of Protection panel deputy, panel guardian and a director of national organisations Solicitors for the Elderly and the Professional Deputies Forum. She also sits on the Court of Protection Rules Committee and acts as a professional stakeholder for the Ministry of Justice, Office of the Public Guardian and Court of Protection.CONTENTSPart One: Legal TheoryChapter One – What Is Mental Capacity?Chapter Two – Professional Obligations of Legal PractitionersChapter Three – Who Should Assess Capacity?Chapter Four – When a Capacity Assessment May Be RequiredChapter Five – Mental Capacity Act 2005: The PrinciplesChapter Six – Supported Decision MakingChapter Seven – Mental Capacity Act 2005: Test of CapacityChapter Eight – Specific Tests of CapacityChapter Nine – Assessment of CapacityChapter Ten – Retrospective AssessmentsChapter Eleven – Challenging Capacity AssessmentsChapter Twelve – Vulnerability FactorsChapter Thirteen – Case StudiesPart Two: Practical GuidanceChapter Fourteen – Lack of CapacityChapter Fifteen – Who Is the Client?Chapter Sixteen – Lack of Capacity – Next StepsChapter Seventeen – Costs and Fees in the Court of ProtectionAppendicesAppendix 1: ResourcesAppendix 2: Precedent Attendance Note (Assessment of Capacity Element Only)Appendix 3: Letter of Instruction to an Independent AssessorAppendix 4: Court of Protection Application FlowchartAppendix 5: Deed of Appointment of New Trustee Pursuant to Section 36(1) Trustee Act 1925Appendix 6: Precedent Section 54 Trustee Act 1925 OrderAppendix 7: Precedent Section 36(9) Trustee Act 1925 OrderAppendix 8: Precedent Deputyship OrderAppendix 9: Orders You Are Seeking (Box 4.1 COP1) Read more