Retaining Relevant Information & Assessing Capacity
When attempting to determine whether a person is able to retain information relevant to the decision being made, there are a number of aspects that you need to be mindful of.
Firstly, what is the decision that you are addressing and what is the information that you have determined to be necessary to demonstrate this? In terms of a persons’ ability to retain information, it should seem obvious that if we are addressing the issue of where a person lives then whether they can retain information relating to their Will is pretty redundant. The information that we are asking them to retain must be relevant to the question being addressed.
Believe it or not, I did once see an assessment whereby the woman’s inability to remember the names of her cats was presented as evidence that she lacked the ability to retain information relating to her treatment! Incidentally, this is one of the reasons why solely using tests like the Mini Mental State Exam (MMSE) to assess mental capacity is wrong. I have yet to find a decision where being able to remember the dates of the Second World War or for that matter, being able to count back from 100 in 7’s was relevant!
Secondly, you have to be mindful that the person you are assessing only needs to be able to retain relevant information for the length of the decision making process - see section 3(3) of the Act which states ‘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.’
Thirdly, you must be mindful of the different types of memory that people have and use.
Memory is commonly divided into short term and long term but within this there are also different types such as epidisodic, declarative, procedural and it is important for the assessor to be mindful of how impairments to the different types of memory may or may not impact upon an individual’s ability to retain and access and use information that is relevant to the decision in question.
Only by being aware of all 3 elements when assessing capacity will you get a true picture of a persons' ability to retain relevant information.
We believe at Thy Will Be Done that we will always make the right decision where mental capacity is involved when determining ability to make a Will or grant a Lasting Power of Attorney and all decisions where there is any doubt whatsoever will involve more than one party with at least one referral to senior Manager within the business