Who Decides That Capacity Has Gone

A family that has watched a parent decline over two years often assumes somebody official has recorded it. Nothing of the kind has happened, and the absence of any formal determination is what makes the next steps confusing.

Who assesses, and for what purpose

Clinicians, for treatment decisions. Assessing whether this patient can consent to or refuse this treatment now, which is the most frequent assessment by a wide margin.

Lawyers, for documents they prepare. Satisfying themselves that a client can make the decision being recorded, which is a professional obligation rather than a formality.

Institutions, for their own transactions. Forming a view about whether to act on instructions, which is informal and is where many disputes originate.

Courts, where it is contested. On evidence, and only where a formal determination is actually needed rather than a practical one.

And nobody, by simple assertion. Since a relative's opinion is not a determination, however well founded and however obvious it seems.

What a good assessment contains

The specific decision named. Rather than a general statement about the person's condition, since capacity is decision-specific, as set out in capacity is decided task by task.

What was explained and how. So that a reader can see the decision was actually put to the person in terms they had a chance of understanding.

What the person could do. Their responses, in enough detail to show whether they understood, retained, weighed and communicated.

The basis of the opinion. Clinical findings, history and any testing, expressed so that a non-clinician can follow the reasoning.

And the date and circumstances. Since capacity fluctuates and an assessment describes a moment rather than a permanent state.

When a determination is actually needed

To activate a springing power. Which requires whatever the document specifies, and is one of the reasons springing documents are difficult, per immediate or springing.

To support a guardianship application. Where no documents exist and authority must come from a court instead.

Where a transaction is questioned. By an institution unwilling to act on instructions it doubts, which is a practical rather than a formal need.

Where a document may be challenged. So that contemporaneous evidence of capacity exists if a will or a transfer is disputed later.

And not for most day-to-day matters. Where families manage perfectly well under an existing power of attorney without anybody assessing anything.

What often goes wrong

The assessment is too general. Describing a diagnosis rather than an ability, which is the commonest reason a letter fails to achieve what was wanted.

It is obtained at a bad moment. During an acute admission or an infection, when confusion is at its worst and may well be temporary.

Nobody explains the purpose. So the clinician writes what clinicians usually write, which answers a different question from the one being asked.

Family conflict contaminates it. Where relatives with opposing interests are present, which affects both the assessment and how it is later regarded.

And it is treated as permanent. When conditions fluctuate and a determination made in March may not describe the position in September.

If a determination is disputed

Establish what it actually says. Since assessments are frequently reported second-hand and inaccurately within families.

Consider a second opinion. Particularly where the first was made in an acute setting or by somebody meeting the person once.

Look at timing and conditions. Since an assessment conducted badly may be answered by a better one rather than by argument.

Distinguish capacity from influence. Since a decision may be challenged as procured by influence rather than made without capacity, per what undue influence means.

And take advice before litigating. Because these disputes are expensive, painful within families, and frequently resolvable without a court.

The absence of any central determination surprises families and is actually sensible. Capacity is not a status to be recorded once; it is a question different people need to answer for different purposes at different times.

What follows practically is that the question should be asked of the right person for the right purpose. A treating physician answers treatment questions; a lawyer satisfies themselves about a document; a court decides only where somebody has to.

The quality of an assessment matters more than its source. Naming the decision, describing what was explained and recording what the person could do produces something usable; a diagnosis and a conclusion does not.

Timing is the most commonly mishandled variable. Assessments obtained during an acute illness routinely overstate impairment, and decisions taken on them can be both wrong and difficult to reverse.

The clinician who has known somebody for years is usually the most persuasive assessor available, because these questions turn on change from a baseline that only a long relationship establishes.

For families, the most useful discipline is separating what they believe from what has been determined. Believing a parent has lost capacity is not the same as anybody having decided it, and acting as though it were creates problems of its own.

Where a determination is genuinely needed, obtaining it properly the first time is much cheaper than obtaining it three times. That means explaining the purpose, choosing the moment and asking for the specific question to be addressed.

And where none is needed — which covers most families most of the time — the better course is to use the documents that already exist rather than to seek a formal finding nobody has asked for.

There is also a human cost worth weighing. A formal assessment is an experience: somebody is examined, questioned and told, in effect, that their family has doubts about them. For a person who is already frightened by their own decline, that is not a neutral event, and it should not be arranged casually or as a way of settling an argument between relatives.

Where an assessment is genuinely needed, doing it once, well, at a good moment and with a clear purpose is kinder as well as more effective. Where it is not needed, the better course is to help the person make their own decisions for as long as they can, which is what the presumption of capacity is actually for.