Capacity to Make Decisions as to Residence

When section 21A Mental Capacity Act 2005 proceedings are brought before the court to challenge a deprivation of liberty, one of the issues the court is often asked to consider is whether or not P has capacity to make decisions as to where to live. So what are the relevant factors for professionals when assessing whether or not P has capacity to make decisions as to where to live?

In the case of LBX v K & Ors [2013] the court considered what factors are relevant and not relevant.

Relevant factors:

(1) what the options are, including information about what they are, what sort of property they are and what sort of facilities they have;

(2) in broad terms, what sort of area the properties are in;

(3) the difference between living somewhere and visiting it;

(4) what activities P would be able to do if they lived in each place;

(5) whether and how P would be able to see their family and friends if they lived in each place;

(6) in relation to the proposed placement, that they would need to pay money to live there, which would be dealt with by their appointee;

(7) who they would be living with at each placement;

(8) what sort of care they would receive in each placement in broad terms, in other words, that they would receive similar support in the proposed placement to the support they currently receive, and any differences if they were to live at home; and

(9) the risk that their father might not want to see them if L chooses to live in the new placement.

Not relevant:

(1) the cost of the placements;

(2) the value of money;

(3) the legal nature of the tenancy agreement or licence;

(4) what L’s relationship with their father might be in 10 or 20 years’ time if they chose to live independently now were not relevant.

When undertaking a mental capacity assessment, it is important to consider what information has been provided to P to enable P to make a decision, how this was conveyed to P and what factors were considered when assessing capacity.

It may be necessary to seek further capacity evidence by way of a s49 MCA 2005 report or independent expert on this point during proceedings.

If you need support with a Mental Capacity matter or decision, contact our Court of Protection solicitor and Accredited Legal Representative Fernanda Stefani Araujo on: hello@stefanisolicitors.com or 020 8161 0518. Our Court of Protection solicitors are based in London but represent clients all over England and Wales. We are regularly instructed in s21A MCA 2005 applications