Let’s Be Open About Mental Health and Mental Capacity in Family Law

Your mental health influences your mental capacity, which is the ability to make decisions. A mental disorder can make decision-making extremely difficult. For this reason, legal systems must keep up and ensure the rights of those with mental disorders are protected, as noted by Jensen Family Law.

People go through many issues like financial constraints and divorce, which pressure their mental well-being. These issues are handled in family law, and attorneys in this faculty should enhance their knowledge about mental health to ensure clients and children benefit. Although it’s not an easy topic to discuss, let’s be open about mental health and mental capacity in family law to maintain a healthy society.

Potential Causes of Mental Health Disorder

The causes of mental health disorders vary, and most people don’t realize they suffer.
If the disorder is more severe than others, it leads to diagnosis and sometimes hospitalization. Here are some potential factors that influence poor mental health.

  • Childhood abuse like neglect, bullying, or trauma
  • Loneliness
  • Ostracism and stigma from acts like racism
  • Social disadvantages like poverty or debt
  • Loss of a loved one
  • Long-term stress
  • Suffering a physical condition for long
  • Loss of a job or unemployment
  • Long-term care for a sick person
  • Misuse of alcohol and drugs
  • Domestic violence or suffering, traumatic experiences like military combat abuse as an adult

The Mental Capacity Act

Anyone can make decisions concerning their life unless there’s proof of their inability. During the proceeding of a family legal case, a lawyer can note when a client’s mental health has deteriorated due to the strain and pressure of the entire process. Hence, they lack the capacity for sound decision-making.

The Mental Capacity Act (MCA) states that a lack of capacity can occur due to health conditions like dementia, stroke, or mental illnesses.

The MCA is fashioned to cushion those who lack the mental capacity to make personal decisions like seeking treatment or care. It covers people of 16 years and above who can’t make simple decisions, including what to wear, buy, or whether to have major surgery to help them heal.

Mental wellness is a significant concern for society and family law attorneys. Solicitors have a pivotal role in understanding and helping others grasp provisions of the law about the same.

Family cases can drain people emotionally and mentally, leaving them unable to process the information their lawyers provide.

Facts on Mental Capacity as Per MCA

A person can suffer mental challenges yet possess the capacity to express themselves and their preferences in life.

However, the MCA allows people to express themselves and appoint someone they trust to act on their behalf if they lack capacity.

So, who is deemed to lack capacity, and what factors determine it?

  • You are assumed to have the capacity unless an assessment indicates otherwise.
  • The decisions made on your behalf must be in your best interests because you have no capacity.
  • Your independence is only withdrawn in particular circumstances; the move is known as liberty deprivation. It’s only effected in the least restrictive manner to ensure your safety and give you the right to proper medical treatment.
  • You can get an attorney who listens and communicates your wishes, but they can’t make financial or personal decisions.
  • If you cannot, the court can appoint a deputy to make financial or personal decisions.
  • Suppose doubts emerge on decision-making. An attorney under a lasting power of attorney (deputy) or the court of protection can do so.

Who Performs a Mental Capacity Assessment?

The assessment itself is performed by an impartial professional. A close relative, family friend, or a mental capacity attorney can be present during the assessment for credibility.

Some professionals responsible for MCA include:

  • Carer
  • Support worker
  • Social worker
  • Occupational therapist
  • Nurse
  • court-appointed deputy

Suppose the capacity test is being carried out concerning a legal transaction like selling a property. In that case, it’s recommended that a professional is involved and a clear medical report provided.

The Court of Protection

The Court of Protection is responsible for making the Mental Capacity Act functional and practical. It deals with financial issues and severe health conditions for people who lack mental capacity and is also involved in resolving disputes.

For instance, if the carer or healthcare giver of the person who lacks capacity disagrees, the court of protection weighs in on the issue to ensure whatever decision they make is in the subject’s best interest.

In some instances, the court can judge a client’s capacity if they can;

  • Comprehend information provided
  • Hold the data for long then make a decision
  • Weigh the information before making the decision
  • Communicate the decision you make

Family cases are filled with emotions; clients can often make emotional decisions. But this does not mean they lack mental capacity. Lawyers need a professional report from a credible authority to determine whether clients lack the mental capacity for decision-making in Family Law.