Capacity, Incapacity or somewhere in between?

Capacity, Incapacity or somewhere in between?


A common misconception about capacity is that it’s black and white – you either have capacity or you don’t. For those of us who have experience with fluctuating (or changing) capacity, it is clear that capacity is actually measured in shades of grey.

A similar misconception is that once capacity is lost, it can never be regained. Dementia is commonly what people think of when they think of someone lacking capacity. Dementia is a degenerative disease – once it develops, it does not improve. But in some cases, such as those who are in a coma, capacity can be regained.

The case of Britney Spears has been closely followed over the past couple of years. Britney was placed into a Conservatorship (similar to a Deputyship in England and Wales) following issues with her mental health in 2008. In 2021, the Conservatorship was brought to an end following a number of hearings, signalling that Britney had regained sufficient capacity to begin managing her own life again. Reports in the media suggest that she may have regained capacity long before the Conservatorship was actually brought to an end.

So what is the situation in England and Wales if someone regains capacity?

The Mental Capacity Act 2005

When someone loses capacity…

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Lasting Power of Attorney

The first thing to consider is what happens when a person loses capacity. Hopefully they have a Lasting Power of Attorney (LPA) in place, allowing nominated people to take over the management of their Property & Finance or Health & Welfare matters. If so, it should be a reasonably smooth transition to the Attorney(s).

If there is no LPA in place then its predecessor, an Enduring Power of Attorney (EPA) might be in existence. EPAs are not centrally registered until a person loses capacity, unlike LPAs which are usually registered straight away, and so they can be more difficult to locate.

Court of Protection or Deputyship Order

If there is no LPA or EPA in place then you may need to consider applying to the Court of Protection for a Deputyship Order. This process is costly and time-consuming and so we always advise getting an LPA in place to avoid the need for a Deputyship Order if you can.

For more information on any of these options, please visit our LPAs or Deputyship pages or you can call us on 0116 212 1000.

If capacity is regained…

If there is an Attorney acting under a registered LPA, their authority in relation to Health & Welfare matters comes to an end as soon as capacity is regained. In relation to Property & Finances, the Attorney may be able to continue acting with the consent of the donor (the person who made the LPA) but it depends on what the document says. If you are unsure, you should seek legal advice.

If the Attorney is acting under a registered EPA then they will need to apply to the Court of Protection to bring their authority to an end.

If there is a Deputyship Order in place then, similarly to an EPA set out above, an application must be made to the Court of Protection to bring the Order to an end.

What if capacity is likely to be lost again?

This question is much more difficult to answer.

As mentioned at the start of this blog – capacity is a grey area and there may not always be a definitive answer. For example, the level of capacity could be changeable, requiring a formal assessment at different stages of a person's condition, especially if on some days the level of cognitive ability is greater than others, particularly early on in an illness, and then later on incapacity becomes more certain and degenerative.

If the person has fluctuating capacity (ie. sometimes they have capacity and sometimes they do not) then it is often best to leave the formal authority in place. This will allow the Attorney or Deputy to step in as and when required. Don’t forget that one of the principles of the Mental Capacity Act 2005 is that Attorneys and Deputies should work with the incapacitated person to support them in their own decision making wherever possible – which may be easier at the times when the person has capacity!

If you need some advice regarding capacity, LPAs, EPAs or Deputyships, please contact one of our experienced lawyers on 0116 212 1000 or complete our enquiry form here.

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