Commentary on Sections Part 1 – Principles Section 3 – Meaning of “lacks capacity”
This section sets out the definition of “lacks capacity” for the purposes of the Act. It provides that a person lacks capacity in relation to a matter if, at the material time, the person is “unable to make a decision” for him or herself about the matter (as defined in section 4), because of an impairment of, or a disturbance in the functioning of, the mind or brain. The inability to make a decision must therefore be caused by an impairment of, or a disturbance in the functioning of the mind or brain.
The definition focuses on the particular time when a decision has to be made and on the particular matter to which the decision relates. It is not an assessment of a person’s ability to make decisions generally. A person may lack capacity in relation to one matter but not in relation to another matter. The section also makes it clear that a person can “lack capacity” even if the loss of capacity is only temporary. It also does not matter what the cause of the impairment or disturbance is. It may be caused by a disorder or disability but equally it may not.