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Fluctuating Mental Capacity

19 May 2020

This week marks the start of Mental Health Awareness Week running from 18–24 May 2020, with a particular focus upon the power and potential of kindness.

Given the current situation surrounding coronavirus and social distancing, it is more important than ever to take care of our mental health and it goes without saying that COVID-19 has taken a lot of us by surprise, disrupting life’s usual rhythms, perhaps more akin to an episode of Black Mirror.

Infectious disease outbreaks can be frightening and can affect our mental health. More of us will be spending time at home and many of our regular social activities will no longer be available to us for the foreseeable future. With that being said, we have seen the amazing acts of kindness undertaken during these unprecedented times, epitomised by Captain Tom Moore being the embodiment of kindness and generosity, raising over £33m for NHS charities.

Over the course of this week I will be addressing a number of key issues surrounding the importance of not only taking care of our mental health, but also various topics in relation to Mental Health and Capacity from the perspective of Wills and Probate to Lasting Powers of Attorney and Deputyships.

Fluctuating Capacity

Sometimes society tells us to always be happy, and that showing sadness is a sign of weakness. This is far from true – it is okay not to be okay. We all have good days. We all have bad days. This can vary in its extremes, especially where mental health issues are concerned.

Fluctuating capacity is where a person’s decision-making ability can vary. A person may lack capacity at the time of a mental health assessment, but the result may be different on a second assessment following a lucid interval. Similarly, mental capacity may be present for some types of decisions, but not for others. Therefore, capacity is both decision-specific and time-specific.

The test for capacity is set out in the Mental Capacity Act 2005 (“the Act”) and states that “[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”. ­­

A person’s inability to make a decision means that the person is not able to:

  • understand the information relevant to the decision;
  • retain that information;
  • use that information as part of the process of making the decision; and/or
  • communicate their own decision.


Whilst the test for capacity appears to be relatively straightforward, in reality, the assessment of capacity can be very difficult, especially for borderline cases. From a practical perspective, people can be aware that they are beginning to lose mental capacity, be it more frequent moments of forgetfulness, changes in personality or temperament or general confusion and distress – to see this in a loved one can be very distressing and a difficult issue to approach and talk about. It is key, however, to always have that person’s best interests at the forefront of your mind when considering how best to deal with the matter.

Fluctuating capacity can also have wide reaching implications and can be a major concern for legal, health and social care professionals. It is simply not a case of black versus white; however, the presumption is that someone has mental capacity unless it can be proven that they do not.

It is therefore important to consider putting in place advanced statements, decisions and Powers of Attorney in order to create the necessary safeguards in the event that you should lose mental capacity. Yes, it can be difficult to think about the future, but putting plans in place now can make matters easier for loved ones should the worst happen.

Over the course of this week, I will be looking into the importance of putting in place these necessary safeguards, looking into the potential pitfalls of not doing so, and steps that you can take now in order to plan ahead.

Tomorrow I will be looking at being appointed as an Attorney under either an Enduring Power of Attorney (EPA) or a Lasting Power of Attorney (LPA) and what you have to do if you are appointed to act.

Let’s shape a society that tips the balance in favour of good mental health, for all of us, but especially for those who are most vulnerable. 

If you would like to discuss lifetime planning with our Private Client Team, please do not hesitate to get in touch with me on 0191 232 8345 or email me at tom.bridge@hay-kilner.co.uk for further information.