MENTAL CAPACITY ASSESSMENT TOOLFOR DECISION OF:

Capacity to Enter into a Prenuptial Agreement

Correct as of 31/10/2017

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This tool is intended to be used by legal practitioners in England & Wales in giving instructions to medics, healthcare professionals or others to carry out a contemporaneous assessment of an individual’s capacity at law to make a particular decision.

This tool is one of a series of Mental Capacity Assessment Tools. The tools are decision specific, so please check so that you are using the correct tool for the required capacity decision.

CONTENTS

Guidance Notes- Includes guidance on use of the Assessment Tool.

Part 1: Capacity Assessment Tool: Capacity to Make Prenuptial Agreement- Form to be completed.

Part 2: Further Guidance - Provides guidance on Schedule 1 and 2, as well as other general guidance.

Part 3: Guidance to the Assessor - Includes guidance on how to record your assessment and conclusions.

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INSTRUCTIONS

NOTE: Throughout this Tool, and particularly the form for completion, there are pop-up guidance notes and prompts. Before starting, ensure that these are displayed:

Guidance Notes: Read first to determine whether you wish to use this Capacity Assessment Tool, to help guide you with your capacity assessment. Detach these first two pages before sending to the assessor.

Part 1: Fill out the form to be sent to the assessor.

Part 2: Further guidance to be referenced in your completion of the form and enclosed in send to the assessor.

Part 3: Do not fill this section in. This should be sent to the assessor with your form and the guidance (parts 1 & 2), and completed upon receipt.

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Display: To view this document with the guidance notes contained within part 2 for reference:

- In Microsoft Word click ‘File’ ‘Options’ and then click on ‘Display’.- Then select (tick next to) ‘Hidden text’ under the heading ‘Always show these

formatting marks on the screen'- Then click ‘Ok’.

Printing: To print this document with the guidance notes contained within part 2 for reference:

- In Microsoft Word click ‘File’ ‘Print’ and then click on ‘Page Setup’.- Then click on the ‘Paper’ tab and select ‘Print Options…’- Within the page that now displays there is a third section called ‘Printing Options’. Click

the tick box in this section which says ‘Print hidden text’ and then click ‘Ok’.- If you now go to print the document as normal, in your print preview you will see the

guidance notes appear which will be underlined with dots, to show you what is hidden text and what is not.

To print this document without the guidance notes contained within part 2, so you can fill in the form and send off to the assessor:

- In Microsoft Word click ‘File’ ‘Print’ and then click on ‘Page Setup’.- Then click on the ‘Paper’ tab and select ‘Print Options…’- Within the page that now displays there is a third section called ‘Printing Options’. Un-

tick the tick box in this section which says ‘Print hidden text’ and then click ‘Ok’.- If you now go to print the document as normal, in your print preview you will see the

guidance notes have disappeared within the document. You now have a form which you can complete and send off to the assessor.

Guidance Notes

Please read these guidance notes, which will assist you in determining whether you wish to

use this Capacity Assessment Tool, to help guide you with your capacity assessment.

This capacity assessment tool is intended to be used by legal practitioners in giving

instructions to medics, healthcare professionals or others to carry out a contemporaneous

assessment of an individual’s capacity at law to make a particular decision. Although there

may be circumstances in which the instructions and the resulting assessment are referred to

for evidence on capacity in court proceedings or where the assessment is intended to be

used in non-contentious proceedings in the Court of Protection, the tool is not primarily

intended to give instructions to experts for reports, statements or joint statements provided to

the court in contentious proceedings.

Prior to the coming into effect of the Mental Capacity Act 2005, on 1 October 2007, the

common law on capacity attempted to bring the “paternalistic attitude” to those who lack

capacity into line with more modern thinking.

The Statutory Code of Practice issued with the Mental Capacity Act 2005 provides some

guidance on how the statutory test and the common law tests will (or will not) align.

4.31 - 4.33 deal with this question, and state “the Act’s new definition of capacity is in line

with the existing common law tests, and the Act does not replace them”. It also confirms that

the 2-stage test for capacity within the Act is “for the purposes of this Act”.

There has been some consequent uncertainty which test is appropriate and in what

circumstances.

The prevailing view is that the court, in circumstances where it decides it will apply the

common law test, is free to adopt elements of the statutory test if it so chooses. However,

the refinement on this set out in Re MM, Local Authority X v MM (an adult) [2007] EWHC

2003 is that a judge sitting in the Court of Protection and exercising the statutory jurisdiction

under the Mental Capacity Act 2005 must apply the statutory test, but that judges sitting in

other courts and deciding cases on certain capacity issues will apply the common law test,

but can adapt that common law test by including elements of the statutory test if they feel

that is appropriate.

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Detach pages 3-4 before sending to assessor

It seems reasonably clear that the particular decisions where existing case law should form

the basis of capacity assessment in courts other than the Court of Protection are:

Capacity to make a Will.

Capacity to make a gift.

Capacity to enter into a contract.

Capacity to litigate.

Capacity to enter into marriage.

The Code of Practice paragraph 4.32 does not make it clear whether this is an exhaustive

list.

The capacity assessment tool produced is based on the statutory test, but includes

reference to relevant case law, which may assist (in particular) with identifying the

information relevant to the decision, as referred to within the statutory test.

If the purposes of the practitioner obtaining this capacity assessment is to ascertain whether

an application to the Court of Protection, a Best Interests Decision or Deprivation of Liberty

safeguarding Order is required, this tool is appropriate.

If the practitioner is seeking to establish the client’s capacity to decide an issue that would, in

the event of lack of capacity, either be decided on by the Deputy/Attorney or not progress at

all (for example capacity to agree to a divorce after two years of separation) then,

notwithstanding that this may fall outside the boundaries of what is encompassed by the

phrase “for the purposes of this Act”, this assessment tool still provides a sensible and

practical means of assessing capacity.

If the practitioner is seeking a contemporaneous assessment of capacity to undertake any of

the decisions detailed in the bullet points above to which the common law tests are stated to

apply, please note that the relevant common law is referred to within the assessment tool,

but the practitioner must decide for themselves whether an assessment based on the Mental Capacity Act 2005 combined with the common law test is appropriate for the purpose for which the capacity assessment is being obtained.

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Part 1: Capacity Assessment Tool: Capacity to Enter into a Prenuptial Agreement

1 Who is being assessed?

Full Name:

Nickname:

Address:

Date of Birth:

2 Why is this assessment needed?

3 What decision or decisions does the capacity assessment relate to?

Capacity to enter into a prenuptial with [……………………………………………….. ]

4 Legal test:In order to ascertain whether the client has capacity you will need to consider the

following:

Mental Capacity Act 2005 2-stage test (see Schedule 1).

Case law on capacity to make this decision (see Schedule 2, which includes

some additional general guidance).

5 Summary of personal circumstances:

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Marital Status:

Immediate Family:

Current living arrangements:

6 Additional information relevant to the particular decision:Please see Schedule 2 for reference in Part 3, on page 12.

7 Points to consider when assessing capacity (including long and short term consequences):

8 Any personal observations from instructing solicitor or person referring the assessor should be aware of:

9 Who has requested this assessment?

10 Have there been any previous capacity or medico-legal assessments?

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11 Are any other capacity assessments for the same or other decisions being carried out?

12 What is the anticipated outcome, if the client lacks capacity to make this decision?

13 In the opinion of the instructing solicitor/person referring is there any alternative to that anticipated outcome that is less restrictive to the future options of the client?

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Part 2: Further Guidance

SCHEDULE 1

There is a 2-stage test to assess capacity:

Is there an impairment of or disturbance in the functioning of the person’s mind or

brain?

Is the impairment or disturbance sufficient that the person lack the capacity to make

the particular decision?

The second stage of the test (functional test) dictates that a person is unable to make a

decision if they cannot:

Understand information about the decision to be made.

Retain that information in their mind.

Use or weigh-up the information as part of the decision process.

Communicate their decision (whether verbally or by other means).

If, on the balance of probabilities, a person cannot satisfy any of these four aspects, then

they lack capacity in relation to that decision.

In drawing your conclusions you must apply the five statutory principles. These are set out

below, together with the statutory provisions which cover the 2-stage test.

Section 1: The principles

(1) The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity until it is established that he lacks

capacity.

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(3) A person is not to be treated as unable to make a decision unless all practicable

steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes

an unwise decision.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks

capacity must be done, or made, in his best interests.

(6) Before the act is done, or the decision is made, regards must be had to whether the

purposes for which it is needed can be as effectively achieved in a way that is less

restrictive of the person’s rights and freedom of action.

Section 2: People who lack capacity

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the

material time he is unable to make a decision for himself in relation to the matter

because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2) It does not matter whether the impairment or disturbance is permanent or temporary.

(3) A lack of capacity cannot be established merely by reference to:

(a) A person’s age or appearance; or

(b) a condition of his or any aspect of his behaviour which might lead others to

make unjustified assumptions about his capacity.

(4) In proceedings under this Act or any other enactment, any question whether a person

lacks capacity within the meaning of this Act must be decided on the balance of

probabilities.

(5) No power which a person (“D”) may exercise under this Act:

(a) In relation to a person who lacks capacity, or

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(b) where D reasonably thinks that a person lacks capacity, is exercisable in

relation to a person under 16.

(6) Subsection (5) is subject to Section 18(3) [powers re property and affairs].

Section 3: Inability to make a decision

(1) For the purposes of Section 2, a person is unable to make a decision for himself if he

is unable:

(a) To understand the information relevant to the decision;

(b) to retain that information;

(c) to use or weigh that information as part of the process of making the decision;

or

(d) to communicate his decision (whether by talking, using sign language or any

other means).

(2) A person is not to be regarded as unable to understand the information relevant to a

decision if he is able to understand an explanation of it given to him is a way that is

appropriate to his circumstances (using simple language, visual aids or any other

means).

(3) The fact that a person is able to retain the information relevant to a decision for a

short period only does not prevent him from being regarded as able to make the

decision.

(4) The information relevant to a decision includes information about the reasonably

foreseeable consequence of:

(a) Deciding one way or another; or

(b) failing to make a decision.

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SCHEDULE 2Case Law

Broughton v KnightThe person must be capable of understanding the nature and effects of the specific contract

that they are entering into and of agreeing to it.

Re BeaneyThe degree of understanding varies according to the type of agreement or transaction

involved.

Other general guidance

One of the fundamental aspects of the assessment of capacity is the identification of the

information relevant to a decision in respect of which the functional test must be satisfied.

Neither the MCA 2005 nor the Code of Practice set out the relevant information for particular

types of decision, but it does need to be identified when an assessment is made. If the

instructions in this assessment for do not assist you to identify the relevant information,

please ask for further clarification. The court has emphasised that the threshold for the

relevant information should not be set so high that people without mental impairment would

struggle to understand and use it to make a decision. It is not necessary for the person to

understand

every aspect of the issue, instead they need a “broad, general understanding of the kind that

is expected from the population at large”.

The MCA 2005 requires that the individual is given all possible assistance to understand and

use the relevant information. The individual being assessed should know what the decision

at issue is, as part of the assessment procedure. They should be provided with the relevant

information and helped to understand it.

Guidance issued jointly by the BMA and Law Society suggests that the information relevant

to a decision about a contract is:-

Who is the other party to the agreement?

How much will the client have to pay?

When will the payment be due? (Or here, in what circumstances)

Any important terms that affect the clients rights and liabilities (here, maybe different

entitlement depending on how long the marriage has lasted, for example).

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Part 3: Guidance to the Assessor

The Person Being AssessedAs you know, Section 1(3) of the Mental Capacity Act 2005 provides that a person is not to

be treated as unable to make a decision unless all practicably steps to help him to do so

have been taken without success, and therefore it is important to seek to ensure that your

assessment is structured to maximise our client’s participation.

To assist you with this, please note that the following supports are likely to be helpful:

1 Best location.

2 Best time of day.

3 Communication aids.

4 Should anyone else be present, and if so, what role should they play.

5 Any sensitive issues/subjects.

6 Any other steps:**

Standard of Proof The standard of proof required is whether our client is on the balance of probabilities

mentally capable/incapable of deciding the issue at stake. You do not have to be satisfied

beyond reasonable doubt. Instead you are being asked whether, in your opinion, it is more

likely than not that our client has/lacks the requisite capacity.

The legal tests and other supporting information which are relevant to your assessment are

to be found in the attached documents.

Impairment of or Disturbance in the Functioning of the Person’s Mind or BrainEITHER: ☐ Our client has been diagnosed as suffering the following impairment/disturbance in

the functioning of the mind or brain:**

OR:

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**Please tick the relevant boxes and provide further information if required.

☐ Our client has not been formally diagnosed but the following symptoms give rise to

concern that there is an impairment/disturbance, and your report should include comments

on likely diagnosis: disorientation/ poor memory/ lack of concentration/ lack of engagement/

jumbled speech/labile emotions/**

Recording Your Assessment and ConclusionsEITHER:☐ Form COP3 is enclosed for you to complete. Please ensure that your assessment

covers the following points:**

OR:☐ There is no prescribed format for your report, however please ensure your written

assessment or report covers the following points:**

TimescalesBecause the Mental Capacity Act 2005 makes it clear that capacity is time and decision

specific, it is important that the assessment takes place as soon as practicable.

Our client’s life expectancy is:**

Dates of any timetabled hearings:**

Please advise as soon as possible of the likely timescales in which you can undertake the

assessment and produce your report.

We also need you to confirm the likely notice you would require to attend court and any

dates or times you would be unavailable.**

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Implied TermsBy accepting these instructions you confirm:

That the proposed assessment is within your competence and expertise.;

That you are not aware of any conflict of interest arising.

You will not delegate these instructions to another practitioner without our express

written consent.

You understand that these instructions have been provided in confidence and that

you owe duties of confidentiality in good faith.

ChargesEITHER:

☐ We have agreed the following fee for your work.**

OR:☐ Before you begin the work we will need to agree the basis on which you will charge,

so please confirm your proposed fee as soon as possible.**

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© 2018 Society of Trust and Estate Practitioners (STEP)

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