Mental capacity is the ability to make a decision. Someone may be capable of making one decision, whilst lacking capacity to make another. For example, a person may have capacity to make the decision to divorce, but may not then have the capacity to deal with the financial arrangements following divorce.
Capacity to initiate divorce
What is relevant in assessing mental capacity is looking at the process involved in making a decision, rather than the outcome of the decision itself.
For example, a decision to divorce may be appropriate where a marriage has irretrievably broken down. A person’s capacity to initiate divorce cannot be determined by looking to their ultimate decision to do so, but whether they have, for instance, understood that their marriage is truly at an end.
Capacity assessment
In many cases, it may be appropriate to undertake a capacity assessment from a professional. An assessor must take reasonable steps to determine that someone lacks capacity, and that it is in their best interests to have another person make decisions on their behalf. They must be able to justify the conclusions of their capacity assessment, by reference to objective reasoning.
It is important to note that an assumption as to someone’s lack of capacity cannot simply be based on their age, appearance, condition or characteristics.
Mental Capacity Act 2005
According to the Mental Capacity Act 2005, there are five statutory principles that underpin capacity:
- It is presumed that a person has capacity, unless it can be proved otherwise (i.e., the presumption of capacity). The burden of proof is on the person alleging a lack of capacity, to show that this is the case. To prove as much, they must demonstrate that, on the balance of probabilities, the person in question lacks capacity (in other words, it is more likely than not that they do not have capacity).
- A person must not be treated as if they are unable to make a decision, unless all practicable steps have been taken to enable them to do so, and without success. For example, it may be that a party to a divorce is far more receptive to information when it is communicated verbally, rather than in writing or vice versa.
- Where a decision appears ‘unwise’ in itself, this does not entail that the decision-maker lacks the capacity to make it. They should have autonomy to make any decision of their choosing, having considered the relevant information.
- If someone is deemed to lack capacity, a decision on their behalf must be taken in their best interests.
- When a decision is made on behalf of someone who lacks capacity, the decision-maker must have regard to whether the purpose of the decision can be as effectively achieved in a manner that is less restrictive to the rights and freedom of action of the person in question.
Where someone is determined to lack capacity in either divorce proceedings, or financial proceedings, or both, it is possible to make an application for a litigation friend to be appointed – this person would step into the shoes of the person who lacks capacity and would be able to conduct the litigation on their behalf.
If you are contemplating divorce, or have concerns around capacity, please do contact our family law team and we would be happy to help.