Assessing Legal Capacity: Process and the Operation of the Functional Test

Abstract:     
This article identifies a number of factors as important in delivering a suitable assessment process for capacity. These include a rigorous application of the functional test, the provision of independent representation for the individual involved, a careful review of medical evidence and the development of a participative element to involve the individual in the process insofar as this is possible.

It argues that it is essential that care is taken to ensure that the process of capacity assessment operates in a way that is most appropriate for the individual whose capacity, and ultimately whose rights, are at stake.

Number of Pages in PDF File: 28

Keywords: capacity, incapacity, assessment, human rights, functional test

JEL Classification: K10, K40

Accepted Paper Series