As practitioners in the Will writing space, you will all be familiar with certain caselaw, such as Banks v Goodfellow. However, what some may not realise is that the 5 principles of the Mental Capacity Act are also highly relevant when it comes to your practice. Over the next few months, I will be exploring the five principles and what they mean for Will writing professionals in practice.
The first principle of the Mental Capacity Act (2005) is defined in s1.2 as
“A person must be assumed to have capacity unless it is established that he lacks capacity”.
This emphasizes that everyone should be assumed to have the capacity to make their own decisions unless proven otherwise.
What does it mean in practice?
This may seem strange at first but imagine if you went to see a doctor and before you had even spoken, they told you lacked the ability to make your own decisions. I suspect you would be very angry, as would I! So, if this is true for you (and me) then it should be true for everyone.
Practically then, this means that no one should automatically be considered unable to make a decision, just because they have a certain diagnosis, illness, disability or appearance.
In effect, what we are being asked to do is to see if there is sufficient evidence to overturn this presumption of capacity. This also brings into play another concept, that of the Balance of Probabilities. We are not expected to be 100% certain, merely that 51% of our brain believes that there is enough/ not enough evidence to overturn this presumption.
The Onus of Proof
Furthermore, this principle means that the onus of proof does not lie with the individual being assessed to prove their capacity, rather it lies with the person who doubts an individual’s capacity, to disprove it.
If we do believe that there is sufficient evidence to overturn this presumption then we proceed to the next part of the assessment process, but if we don’t then we assume capacity and proceed accordingly.
This principle can sometimes be used as an excuse to do nothing. However, as the ruling of In Royal Bank of Scotland Plc v AB (2020) points out.
“When there is good reason for cause for concern, where there is legitimate doubt as to capacity [to make the relevant decision], the presumption cannot be used to avoid taking responsibility for assessing and determining capacity”.
Conclusion
This principle is the first one for good reason because if there is not sufficient evidence to overturn the presumption then doubts around capacity should stop there. However, it is important that as practitioners we understand our responsibilities. This principle is a balancing act between respect, equality and challenging any biases that might otherwise undermine an individual’s autonomy whilst, at the same time ensuring we do not use it as a cover for inaction when action is required.
