Assessing Capacity

Since legal capacity is not an all or nothing concept it will very much depend on individual circumstances in relation to the nature of decisions that have to be made as to whether some sort of intervention is required or not. The five general principles laid down in the Adults with Incapacity (Scotland) Act 2000 (the Act) will form the basis for any type of intervention.

If there is any doubt about a client's capacity to make decisions regarding their finances or welfare then a formal assessment will need to be carried out. This assessment could be carried out by a number of people:

Social workers and others will need to assess whether the Act is relevant to particular people and particular situations
Solicitors have to assess whether people who intend granting powers of attorney are capable of understanding what they are doing and are not under undue influence
Doctors will be involved in making a lot of decisions on capacity.

Although these professionals will carry out their own assessments they will not necessarily work alone and will need to take account of:

The past and present wishes of the client
The views of the nearest relative* and/or primary carer
Others with an interest
Other professionals' assessments

* The nearest relative is the first from a rigid list, older relatives taking precedence over younger, irrespective of whether the person was caring for the client:

spouse (includes co-habitation for at least six months, including same sex relationships)
child
father or mother
brother or sister
grandparent
grandchild
uncle or aunt
nephew or niece