The four questions
A person is assessed on whether, for the particular decision at the particular time, they can: understand the information relevant to the decision; retain it long enough to decide; use and weigh it in reaching the decision; and communicate the decision by any means — speech, writing, gesture or assisted communication. Fail any limb for that decision, even with all practicable support, and capacity for that decision is lacking. Pass, and the decision is the person's to make — however unwise anyone else thinks it.
Decision-specific, time-specific
The same person may have capacity to decide what to wear and where to live, but not to restructure a shareholding. They may lack capacity on a bad day and hold it on a good one — assessments should meet the person at their best, not their worst. And a diagnosis is not a verdict: dementia, intellectual disability or brain injury describe conditions, not the answer to the four questions for any given decision. This is why the Act's arrangements are built around specified decisions rather than global status — and why the old wardship approach had to go.
Support comes first
Capacity is only treated as lacking if the person cannot decide even with support — information in accessible form, extra time, a familiar setting, a trusted person helping. In practice that means an assessment done in a rushed hospital corridor may say more about the corridor than the person. Families are entitled to expect — and solicitors to insist — that supports are tried before conclusions are drawn.
Who assesses, and how it's used
Day to day, capacity judgments are made by whoever needs one — a doctor before treatment, a solicitor before taking instructions, a bank before acting. For court applications, expert evidence addressing the functional test for the specific decisions in question is central, and generic "lacks capacity" letters don't meet it. When we prepare applications, shaping that evidence properly is much of the work — and when we take instructions from clients whose capacity others doubt, the same test protects their right to instruct us.
How our fees work
You get a fixed quote in writing before any work starts — no hourly-rate surprises. If the scope changes, the quote is revised in writing before we continue. In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement. How costs work in capacity matters →
Frequently asked questions
Can a person with dementia still sign legal documents?
Often, yes — if at the time of signing they meet the functional test for that document. Early diagnosis does not end legal life; it makes proper assessment and good timing more important. This is exactly the window in which planning documents should be considered.
Who decides whether my father has capacity?
There is no single gatekeeper: the professional needing the decision assesses for their purpose, and for court applications the court decides on the evidence. Family views matter as context, but a family member cannot declare someone to lack capacity — and neither can a diagnosis alone.
What if someone makes a decision we think is foolish?
The Act is explicit: an unwise decision is not, by itself, evidence of lacking capacity. Adults with capacity are entitled to make choices others disagree with. The question is always the four-part test — not the wisdom of the outcome.
Talk to a solicitor who works with families through capacity law every week. Call Mary Molloy Solicitors today.
Whether you are planning ahead, facing a capacity application, or simply unsure which arrangement your family needs, an early conversation costs little and prevents a lot.
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