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Additional info for Assessment of Mental Capacity: Guidance for Doctors and Lawyers
Make sure that the doctor is aware that the standard of proof is the balance of probabilities, rather than beyond reasonable doubt. Remind the doctor that his or her opinion on the client’s capacity is open to challenge (and as a courtesy the doctor should be informed if the matter is likely to be contentious, without giving the impression that a lower standard of care will suffice in a non-contentious case). Wherever possible avoid asking for simultaneous assessments of a client’s capacity for a variety of different transactions (for example, where a client is in the early stages of dementia it would be unreasonable to expect the doctor to assess in one examination whether the client is capable of making a will, creating an enduring power of attorney, making a lifetime gift, and managing and administering his or her property and affairs) – not only is this unfair to the doctor, but also could be extremely unfair to the client.
2). Shortly after the Enduring Powers of Attorney Act 1985 came into force the Court of Protection received a considerable number of applications to register enduring powers which had only just been created. This raised a doubt as to whether the donors had been mentally capable when they signed the powers. The problem was resolved in the test case Re K, Re F5 in which the judge discussed the capacity to create an enduring power. 6 It is worth noting that the donor need not have the capacity to do all the things which the attorney will be able to do under the power.
Further, it may not be possible to pursue legal proceedings unless the court is satisfied that a party to the proceedings has capacity (see Chapter 7). 1). 5). In the face of an outright refusal, however, no one can be forced to undergo an assessment of capacity unless required to do so by a court in legal proceedings. Even then, entry to a person’s home cannot be forced, and a refusal to open the door to the doctor may be the end of the matter. Where there are serious concerns about the person’s mental health, an assessment under mental health legislation may be warranted as long as the statutory grounds are fulfilled.