Glossary — ADAP-MCA

This glossary provides the basic terms that often arise in connection with mental capacity assessment.

Term	Description
Advance directive	A written instruction guiding health care and/or appointing an agent to make decisions about care in the event that an individual loses the capacity for informed consent and is unable to communicate their desires at a future date.
Best interests	Decision makers have a duty to consider many factors that focus on what is best for the person lacking capacity before making a decision on their behalf. Typically, it refers to the standard of surrogate decision-making based on what a reasonable person would consider the optimal decision or arrangement for an incapacitated person, taking into account the least intrusive and most normalizing approach possible given the individual's needs - as opposed to a "substituted judgment" standard of decision-making based on the incapacitated person's known values or preferences. Refer to Office of the Public Guardian (2016) Chapter 6 for more information.
Deputy	A deputy is appointed by the court to make certain decisions on behalf of a person who lacks mental capacity when the person has not made an LPA and has no donee to decide on their behalf in respect of those decisions. A deputy can be an individual, or a licensed trust company for property & affairs matters under the Trust Companies Act (Cap. 336) as prescribed by the Mental Capacity Regulations.
Deputyship order	Deputyship order is an order made by the Court under the Mental Capacity Act appointing a person ("deputy") to make decisions on behalf of another person ("P") who is assessed to lack mental capacity for certain matters.
Diminished capacity	A lessened ability to understand the nature of one's acts in one or more domains. A person may have capacity in some domains but not in others. A judge may find that a person has diminished capacity and appoint a guardian whose authority is limited in scope to those areas in which a person lacks capacity. Since capacity is not global in nature but task specific, some international guardianship reform recommendations urge that the term "diminished capacity" be used generally instead of the term "incapacity".
Donor	The person, at least 21 years of age, who makes a Lasting Power of Attorney (LPA), appointing donee(s) to take care of their personal welfare and/or property & affairs matters in the event they lose mental capacity one day.
Donee	Donees are appointed by donors to make decisions and act on their behalf on personal welfare and/or property & affairs matters in the event the donors lack mental capacity to manage their own affairs.
Financial capacity	Decision making regarding a number of financial tasks, such as general financial management of assets and debts, writing checks, paying bills, knowing and using currency and coin, making contracts, writing wills.
Fluctuating capacity	A person had fluctuating capacity when their mental capacity changes from time to time, for example, when their condition changes from good to bad and bad to good. It is variable. Persons in the early stages of dementia or suffering from schizophrenia may experience fluctuating capacity.
Ill-treatment	Ill-treatment under the Act is the abuse of persons who are at least 16 years old and who lack capacity or whom the offender reasonably believes to lack capacity. Ill-treatment includes physical abuse, sexual abuse, psychological abuse, neglect and omission.
Informed consent	Agreement to a treatment or other intervention that is based on adequate knowledge of the condition and alternatives (is informed), is not coerced (is voluntary), by a person who has capacity for such decisions. Informed consent is the process by which a fully informed patient can participate in choices about health care. It originates from the legal and ethical right the patient has to direct what happens to their body and from the ethical duty of the physician to involve the patient in their health care.
Jointly	The donees or deputies must act together and not alone. (In the context of decision making by donees or deputies.)
Jointly and severally	The donees or deputies can act together or separately. Both types of decision are valid. (In the context of decision making by donees or deputies.)
Jointly on some matters and jointly and severally on others	This means that the deputies must act jointly on some matters, for example, sale of residential property, but may act separately on other matters, for example, paying household bills. (In the context of decision making by donees or deputies.)
Lasting Power of Attorney (LPA)	A legal document that allows a donor to voluntarily appoint one or more donees to make decisions and act on their behalf should they lose the capacity to make their own decisions.
Least restrictive alternative	The least intrusive service or treatment that can effectively and safely address person's needs and stated preferences. Also, "least restrictive alternative" is a constitutional principle providing that the government may not pursue a legitimate purpose (such as protecting an individual who lacks capacity) through means that broadly stifle rights when the purpose can be achieved more narrowly. When there is a deprivation of rights and liberties for safety and protection, the less drastic means possible must be used.
Mental capacity	Mental capacity is the ability of a person to make a specific decision at a particular time. The Act introduces a two-stage test to ascertain mental capacity. Refer to Office of the Public Guardian (2016) Chapter 4 for more information.
Office of the Public Guardian (OPG)	The OPG has a wide range of responsibilities within the framework of the Mental Capacity Act. These invlude keeping a register of LPAs, supervising deptuties and investigating allegations of ill-treatment.
Permanent incapacity	A person suffers from permanent incapacity when the incapacity is long term. Examples include persons in a permanent vegetative state or locked-in syndrome. Refer to Office of the Public Guardian (2016) paragraph 4.4.1 for more information.
Prayer	Prayer use in legal context refers to a specific request to the court for judgment, relief and/or damages at the conclusion of a complaint or petition. When used in ADAP, it refers to the specific powers sought by applicant for deputyship.
Statutory principles	There are five statutory principles under the Mental Capacity Act that everyone must follow when dealing with persons who lack or may lack mental capacity.
Undue influence	Influence or coercion by someone who intentionally uses their role and power to deceive and exploit the trust, dependency, and fear of another, gaining decision-making control of another. An individual who is stronger or more powerful gets a weaker individal to do smoething that the weaker person would not have done otherwise. The stronger person uses various techniques ot manipulations over time to gain power and compliance.
Unwise decision	This refers to one of the statutory principles. A person who has mental capacity has the right to make a decision that is unwise in the view of others. Just because a decision is unwise does not mean that the person has lost mental capacity. Refer to Office of the Public Guardian (2016) paragraph 3.5 for more information.
Will	A will is a legal document that a person signs that directs the distribution of their property when they pass away. This definition includes codicils, which is an amendment to a will.

Please refer to Office of the Public Guardian (2016) Page 111 and American Bar Association Commission on Law and Aging and American Psychological Association (2008) Page 150 for description of more terms commonly used in MCA.