Asking the wrong questions
The most common mistakes when assessing mental capacity
Number 4 in Tim Farmer’s series
Simple as it may sound, asking the wrong questions gets you the wrong answers. Many assessors don’t understand the importance of setting the Threshold of Understanding prior to the assessment and all that this entails and implies. For those that are unfamiliar with the term, the Threshold of Understanding determines what information is required to identify a person’s level of understanding. In setting this threshold it also becomes the assessors’ duty to determine which questions are necessary to gain an insight into the level of a persons’ understanding.
Sometimes the threshold for capacity is neatly laid out in case law but a lot of it is common sense. If you know that you are asking about a persons’ ability to decide treatment then asking them about their Will may not be the most appropriate avenue to explore (I once saw a report that argued a person didn’t have capacity to manage their finances because they couldn’t remember the name of their cat!) . Sometimes, it can be difficult to determine what you need to know. I was once asked to assess a gentleman’s capacity to decide whether to meet with someone he had never met. It took a lot of thought to determine the threshold and necessary information required. Did he need to know about the expectations of different types of relationships? Risks involved with meeting people? What would be the effect on him should it go wrong? etc.
Unfortunately there can be no substitute for experience when it comes to this but in the same way you can seek advice over which are the correct tests to use, so you can also seek advice from colleagues in relation to the threshold and the type of questions you should ask. If in doubt, cover more than you think you need to. It is always better to have too much information that you can whittle down to the relevant stuff than have not enough and be left unable to make a decision.
The LawSkills Monthly Digest
Subscribe to our comprehensive Monthly Digest for insightful feedback on Wills, Probate, Trusts, Tax and Elderly & Vulnerable client matters
Not complicated to read | Requires no internet searching | Simply an informative pdf emailed to your inbox including practice points & tips
Subscribe now for monthly insightful feedback on key issues.
All for only £120 + VAT per year
(£97.50 for 10+)
FREE monthly newsletter
Wills | Probate | Trusts | Tax | Elderly & Vulnerable Client
- Relevant learning and development opportunities
- News, articles and LawSkills’ services
- Communications which help you find appropriate training in your area