How Fluctuating Capacity Impacts Specific Queries Regarding The Protected Party’s Capacity

Our previous blog, here, considered how the Court of Protection handled a Protected Person’s best interests where they had been assessed to have fluctuating capacity. In summary, when making a decision in those cases, the Court of Protection, being alive to the fact that at a material time the Protected Party may lack capacity, may put in place precautionary measures allowing decisions to be made on behalf of the Protected Party for the occasions when the Protected Party does not retain capacity. In further, considering a finding of fluctuating capacity, this blog considers the impact with regard to the common decisions before the Court of Protection.

The Court of Protection’s role

By way of reminder, a person is found to lack capacity in relation to a matter if at the material time they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. It does not matter whether the impairment or disturbance is permanent or temporary, confirming that there can be a finding of fluctuating capacity. Will a finding of fluctuating capacity, however, always require the Court of Protection to put in place precautionary measures, or can there be a finding of capacity for more straight forward decisions?

The common decisions that come before the Court of Protection are as follows:

The complexity of the above decisions differs, and the level of understanding required will be higher for the more complex decisions. For example, a person will simply be required to understand and appreciate their financial affairs to make a Will; however, the understanding required to manage their financial affairs will be greater, particularly if their finances are significant or complex. The assessment of a person’s capacity, therefore, depends on the decision in question.

Given the varying complexity of the decisions, it is possible that where there is a finding of fluctuating capacity, an overall finding of capacity may be found for the more straight forward decisions. This position was affirmed in this case, where the Protected Party was assessed to have fluctuating capacity, and it was found that the Protected Party retained sufficient capacity to marry but not capacity to manage his property and financial affairs or to litigate as those latter decisions required continuous and ongoing capacity. The Court further commented that the Protected Party would also retain the capacity to revoke and grant powers of attorney and make a Will; however, when doing so, there was a need to obtain contemporaneous evidence of capacity to confirm at the material time the Protected Party retained capacity.

Comment

A finding of fluctuating capacity will not, therefore, automatically prevent the Protected Party from acting or making their own decisions. Instead, the complexity of the decision will need to be considered alongside the period for which capacity is required. Providing capacity is required for a short period and can be evidenced at the material time, the Protected Party will be able to act independently. This position comes as no surprise, given the Court of Protection’s approach in encouraging a person’s autonomy.