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How is mental capacity determined?
To understand whether a person has the mental capacity to decide, a two-stage test is applied:
Stage 1: Diagnostic Test: Is there an impairment of, or a disturbance in the functioning of, the person's mind or brain? This could be caused by conditions such as dementia, a brain injury, a mental health problem, or a learning disability.
Stage 2: Functional Test: Is the person unable to make a specific decision because of that impairment or disturbance? This includes if they cannot:
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Understand the information relevant to the decision.
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Retain that information for long enough to make the decision.
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Use or weigh up the information as part of the decision-making process.
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Communicate their decision (by any means, including speech, sign language, or blinking).