Correctly identifying whether someone is capable of making their own decisions is fundamental to the protection of their human rights.
Anyone who needs to assess decision-making capacity, such as friends, family or social workers, must consider the particular elements of the legal test specific to the decision.
For instance, in assessing whether someone has the capacity to make their own financial decisions, you will need to consider two questions.
First, is the person capable of managing their own property and affairs?
They don’t have to be able to manage them in the best possible way, they just have to be able to manage them. Issues to consider include:
A. whether the person is able to deal in a fairly capable way with the ordinary regular dealings in life so as to provide for their own welfare and anyone dependent on them,
B. whether they understand their assets and outgoing expenses, and,
C. whether they can manage their money to provide food, clothing, medicine and other necessities.
Second, if they can’t manage their affairs, is there a risk that they may be disadvantaged or harmed, or their money or property wasted or lost?
In addressing capacity it is important to avoid discrimination. Don’t assume a person lacks capacity based on age, appearance, disability, behaviour or any other condition or characteristic.
Before concluding lack of capacity, ensure that everything possible has been done to support the person to make a decision.
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