As we age, there are a number of occasions where we may need to check whether someone has still got the mental capacity to make a decision, whether that be for legal reasons or for medical reasons.
Needless to say, it’s a highly emotive topic. I chatted with Tim Farmer of TSF Consultants on The Retirement Café podcast recently and he shared his knowledge of how, when and why mental capacity assessments are carried out.
When a mental capacity assessment is needed
Mental capacity is really another way of saying a person’s ability to make a decision. So it’s about when people are starting to struggle to make a decision, that’s when you need to start thinking, “Right, I need to get their ability to make this decision assessed.” And depending how complex the decision, it depends how much more the person needs to understand.
There are two very key elements to mental capacity.
One is that it’s item specific and one, it’s time specific. All we can really say is, “What are you like now?”
Who can or should complete an assessment?
On a day-to-day basis, let’s say small decisions about can this person go to the park, do they want to have Weetabix for breakfast? Anybody can assess the capacity around those.
But if we get more and more complex, so it might be around what to do with their money or where to live, that’s when you need to start to get the specialists in.
When I talk about a specialist, it’s not necessarily the GP, it’s not necessarily the consultant psychiatrist. I would say it’s the person that’s got the most experience and the most knowledge and can do the best job for you. Firms like Tim’s specialise in undertaking mental capacity assessments.
Getting evidence for the future
If people are making quite controversial decisions, for example someone might have decided that they don’t want to include a certain beneficiary in their Will any longer and they feel it might be challenged at a later date. Then they might say, “Well I want a capacity assessment, so that the challenge can be rebuffed later.”
Or it might be that the person who’s struggling with memory or with understanding and you want to make sure that they’re really understanding the consequences of the decisions they’re making.
What happens in an assessment?
An assessment is very much a chat.
Tim will sit down with an individual and say, “Look, I’ve come to talk to you about how you manage your property and finance, so what we’re going to talk about today is, we’re going to talk about how you manage it at the moment. Any of the issues you might struggle with. We’ll talk about what money you’ve got, how you manage it, if anybody helps you.”
It’s very much just a very gentle chat. Tim’s job is to show the person at their best.
It’s also about highlighting little areas where they might struggle and exploring with them how we might support them or they might be supported to overcome it. Now, the Mental Capacity Act is really clear in this, it says, “We can’t expect everybody to know everything about everything.”
So it’s about what would the average man on the street need to understand about, say, managing their money? And the Act is also very clear that if there’s something that they don’t understand, Tim’s job as an assessor is to try and help them understand it. So for example, if they don’t know how much money they’ve got, then he might say, “Well actually, let’s have a look at your bank account and this is what you’ve got and let’s try and work with that.” And then it would be about seeing if they could remember that information later on to be able to make a decision.
When we’re assessing somebody’s ability to make a decision, we’re looking at four things.
- We’re looking at their ability to understand relevant information.
- They have to be able to retain the information for the length of the decision-making process.
- A person then also has to be able to apply that information.
- They also have to be able to communicate it back.
So if at any point somebody started to struggle with one of those four areas, I think that’s when we find we’ve crossed over that line. And we have to say, “Right, let’s just take a break. Let’s think about whether this person’s able to make the decision for themselves. And if we’re not sure, let’s get them assessed.”
It can be quite a difficult thing to present to people and it’d be quite a difficult thing for people to hear.
How to approach as assessment
Tim always advises people to couch it in a way of you’re trying to do something in the bet interest of your mum or your dad or your son, for example. people are often vulnerable, we’re protecting them and making sure that their wishes are being met and being protected.
Try and identify the specific area that the person is struggling with, for example, managing their finances. Then approach a firm like Tim’s or a solicitor who specialises in the Court of Protection
When we talk about mental capacity, people often think of it as as a negative thing and like a life sentence. To say, “Right, you’ve now lost capacity and that’s it.” That’s not the case. People can regain capacity.
Quite often we find people that might have a urinary tract infection for example and they become very confused and during that confused state, they may not be able to remember that information. They may not be able to work with it. But actually once they’ve come out the other side, they’re back to normal and they’re great.
So mental capacity is very much time specific and it’s about at this particular time, is there’s something that’s stopping you from being able to make these decisions, and then if that resolves itself, then we can say, “Right, well you’ve regained capacity and crack on.”
Mental Capacity and Dementia
Before they go and do an assessment, TSF Consultants out when people are better. So we know that people with dementia are better in the morning than in the afternoon. It’s about trying to make sure your assessment sees them in a place that they’re familiar with and comfortable with because we know if people are confused and you put them in an alien environment, it makes them more confused.
It’s about trying to find that right time for them. So one of the questions they will always ask when they see somebody is “Is today a good day?”
Because if it’s not a good day, if it’s not a good time to get them, then can we postpone. The other really important thing is that just because somebody’s got a diagnosis of dementia, doesn’t automatically mean they can’t make a decision.
There’s something called the causative nexus, which is a link between any illness or impairment of the mind and the person’s ability to understand and retain and weigh up and use information.
A heart warming story
“I was asked to see an old lady, she was 89. She had early onset dementia and she had £400,000 in the bank. She had no driving licence and she wanted to buy a £350,000 sports car.
Now instantly, when you’re presented with those facts, you think, “Okay, I think something might be a little awry here.”
But I went along to see her and I said, “Tell me about what’s going on.” And she said, “Well, the thing is, I am 89 I’ve got cancer. I’ve been told I’ve got three months left to live. But I’ve got an only child and ever since he was about seven, he’s wanted a particular type of sports car and that sports car costs £350,000 and I’m not buying the car for me. I’m buying it for him.
She was able to explain that once she’d spent that money, she had £50,000 left. And if they got the diagnosis wrong and she lived for another two years, she still had plenty of money. And if after that, she was still alive, well, she was happy to live in a state care home.
So, even though she had this dementia, she was actually perfectly capable of being able to make these decisions and buy this sports car, which she did. And her son was over the moon about, as you could imagine.”
It’s really important that we see the individual rather than a diagnosis or an impairment.