What is Mental Capacity?

Capacity refers to the mental competence of an individual to make a particular decision, and/or undertake certain acts, and/or engage in a particular activity. One has capacity to make a particular decision when he can understand the facts and
choices involved, weigh up consequences of the decision, and communicate the decision.

What are the Common Causes of Mental Incapacity?

Capacity refers to the mental competence of an individual to make a particular decision, and/or undertake certain acts, and/or engage in a particular activity. One has capacity to make a particular decision when he can understand the facts and choices involved, weigh up consequences of the decision, and communicate the decision.

There are two major causes of mental incapacity:
(1) Intellectual Developmental Disorder
(2) Acquired conditions in later in life such as accidents or illnesses.

The symptoms of Intellectual Developmental Disorder (IDD) are usually present at birth or in early childhood. People with IDD have difficulty in handling daily living and meeting the learning needs. IDD ranges from mild to severe severity. For severe cases, the person can never gain the skills required for basic activities of daily living (e.g. toileting, grooming, dressing etc.). The major causes of IDD include chromosomal abnormalities (e.g. Down syndrome), cerebral palsy, prenatal infection or alcohol/drug poisoning, and central nervous system infection (e.g. encephalitis in infancy or childhood. However, one third of severe cases and half of the mild cases have no identifiable cause.

Common causes of mental incapacity in adulthood include traumatic brain injury (e.g. severe traffic or industrial accident), neurological disorders (e.g. stroke, dementia, heart disease leading to brain hypoxia) and severe mental illnesses.

Accidents and illnesses always catch us unprepared! Our sound mind can be lost in a minute.

Who should be concerned?

All people over 16 years old should learn about “Mental Capacity” and the related legislation/issues, and make proper arrangements and preparation for oneself and his/ her family members. For our peace of mind and to prevent unnecessary trouble or dispute among family members, everyone of us is strongly encouraged to learn more about mental capacity such that we can “Do the Right Thing at the Right Time”!

 

Stage one: Under 16

People in Stage 1 are protected by the Protection of Children and Juveniles Ordinance. In most of the cases, their legal guardians are their parents.

Stage two: 16 years old or above with mental capacity

In Stage 2, people have decisional capacity and need to bear legal liability for the decision they make. This is the only phase we can make necessary preparation for ourselves and the family members we care. We should consider preparing the “Three Instruments for Peace of Mind”, including: Enduring Power of Attorney (EPA), Advance Directives in relation to medical treatment and Will. For the parents of children with special needs, we can establish a Special Needs Trust to ensure the care and financial needs of the children will be met in the future.

Stage three: Mentally Incapacitated Person (MIP)

In Stage 3, we can no longer make legal decision for ourselves. If an EPA is created, the appointed Attorney can start to manage the financial matters on behalf of the MIP. For those who do not make EPA, their family may need to apply for Guardianship Order (GO) from the Guardian Board, or apply to the High Court under Mental Health Ordinance Part II (MHO Part II) for financial or legal matters. Regarding to the application of GO and MHO Part II, the procedure takes at least few months even for the straightforward case and medical assessment by two registered medical practitioners (one should be psychiatrist) is required. In addition, MHO Part II is a High Court procedure, thus it usually needs to be handled by solicitors. As a result, you can imagine both the monetary and time cost for the application of GO or MHO Part II are much higher than the creation of EPA.

Stage four: Dead

In Stage 4, one is gone but dispute may arise. If someone has not created a Will properly while in Stage 2, the family members may contest the Will or estate arrangement when he/she passes away. We can see many court cases for such reason.

Stage one: Under 16

People in Stage 1 are protected by the Protection of Children and Juveniles Ordinance. In most of the cases, their legal guardians are their parents.

Stage two: 16 years old or above with mental capacity

In Stage 2, people have decisional capacity and need to bear legal liability for the decision they make. This is the only phase we can make necessary preparation for ourselves and the family members we care. We should consider preparing the “Three Instruments for Peace of Mind”, including: Enduring Power of Attorney (EPA), Advance Directives in relation to medical treatment and Will. For the parents of children with special needs, we can establish a Special Needs Trust to ensure the care and financial needs of the children will be met in the future.

Stage three: Mentally Incapacitated Person (MIP)

In Stage 3, we can no longer make legal decision for ourselves. If an EPA is created, the appointed Attorney can start to manage the financial matters on behalf of the MIP. For those who do not make EPA, their family may need to apply for Guardianship Order (GO) from the Guardian Board, or apply to the High Court under Mental Health Ordinance Part II (MHO Part II) for financial or legal matters. Regarding to the application of GO and MHO Part II, the procedure takes at least few months even for the straightforward case and medical assessment by two registered medical practitioners (one should be psychiatrist) is required. In addition, MHO Part II is a High Court procedure, thus it usually needs to be handled by solicitors. As a result, you can imagine both the monetary and time cost for the application of GO or MHO Part II are much higher than the creation of EPA.

Stage four: Dead

In Stage 4, one is gone but dispute may arise. If someone has not created a Will properly while in Stage 2, the family members may contest the Will or estate arrangement when he/she passes away. We can see many court cases for such reason.

We need to consider several principles when assessing one’s Capacity:

If an individual is judged to lack Capacity, any act done on his behalf must be in his best interests. The fact that one has mental illness requiring a Committee does not mean he will automatically lack mental capacity in all aspects of life. Thus, if a person has the ability to make simple financial decisions, he should be allowed to do so.

01.

Always presume a person has Capacity unless the contrary is shown

02.

Capacity is decision-specific, meaning that different levels of Capacity are required for different activities

03.

Capacity is time-specific, and can fluctuate over time and one’s physical or mental condition

04.

Do not assume a person lacks Capacity based on age, appearances, disability, behavior or educational level

05.

Assess the person’s decision-making ability, not the decision he has made

06.

Respect a person’s privacy

07.

Substitute decision making as a last resort

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