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In a legal context, capacity refers to your ability to understand the information you need to make a decision and be able to appreciate the (reasonable foreseeable) consequences of making a decision (or lack of a decision). Legal capacity does not refer to your physical ability to do things yourself.

It is best to have a professional, preferable a capacity assessor determine the individual’s mental status.


Things to consider:

Always assume that someone is capable and that their wishes are to be followed unless there is very strong evidence to indicate differently.

To have some confidence about capability, you need to take the time to get to know the person over a number of days to ensure that they can understand (grasp/comprehend), have the vision to read (have their reading glasses on), and are able to hear (are wearing their hearing aids) what you are saying.

When one is capable of making a decision about their personal care or who they want to assist them with decision making, they are able to fully understand their situation:

  • They can describe what is happening to them.
  • They are able to identify if there is a problem.
  • They are able to discuss different choices.
  • They understand the difference between the choices.
  • They understand what will happen depending on what choice they make and as a result make a “reasoned decision” about what they should or should not do about the situation.

One way to determine how well someone understands the situation that they are in is to talk to them about it several times over several different days. If they are able to discuss the situation in a similar manner over a period of days then they are likely capable. If they appear to have forgotten about the issue and/or the previous conversations, or are inconsistent in their potential solutions, they may be demonstrating some cognitive impairment that may impact on their capacity.

When the individual is discussing a situation that has happened very recently, they may have changing moods such as anxiety and fretfulness. This may make them appear confused.

If you feel that the person has limited ability to understand then you should ask them about who they trust and talk to that person about your concerns. If you cannot determine that it is best to call a professional for assistance. Often the Alzheimer’s Society can give you direction.