The law relating to mental capacity (the legal term for soundness of mind) does not stipulate that a person has to be ‘capable’ or ‘incapable’ as regards making any decision. Whether a person has or lacks mental capacity depends on the particular decision they are making as well as on their specific mental capabilities.

Recently, the Court of Protection ruled that a woman did have the mental capacity to enter into a marriage but lacked the capacity to make a decision regarding cohabiting with her husband, whom she had married whilst he was serving a prison sentence following a conviction for serious sexual offences, once he had been released from prison.

She appealed against that decision, which led to her case being considered by the Court of Appeal.

The couple argued that the previous ruling had been based on the wrong premise – i.e. that the woman lacked the mental capacity to decide to live with her husband. The correct test, they argued, was whether she had capacity to decide to cohabit with any other person.

The Court held that the approach taken by the judge was correct and that the determination of mental capacity is ‘act specific’. However, the first decision that had to be reached was whether or not the woman ‘was able to make a decision for herself in relation to the matter’. On the facts of the case, the Court ruled that she was able.

The Court has confirmed that whilst a person may be capable of making some sorts of decisions, they may not be capable of making others. In a different context, this may mean that an elderly or infirm relative who has episodes of mental confusion interspersed with periods of lucidity may be regarded as capable of executing a legal document – such as a will.


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