Definition of incapacity

The law in Scotland generally presumes that adults i.e. those over the age of 16 are capable of making personal decisions for themselves and of managing their own affairs. The starting point is a presumption of capacity and this can only be overturned where there is medical evidence stating otherwise.

For the purposes of this Act, “incapable” means incapable of:

  • acting; or
  • making decisions; or
  • communicating decisions; or
  • understanding decisions; or
  • retaining the memory of decisions.

in relation to any particular matter due to mental disorder or inability to communicate because of physical disability.

This is not an ‘all or nothing’ definition as the Act recognises that an individual may lack capacity to make certain decisions relating to their affairs but might have capacity to make other decisions. For example, someone may have capacity to deal with pocket money however they might need some help in making decisions about paying their bills and dealing with their bank accounts.