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Capacity, Incapacity or somewhere in between?

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​An interesting article by one if our clients giving an insight to this delicate area of law.

A common misconception about capacity is that it’s black and white – you either have capacity or you don’t. For those of us who have experience with fluctuating (or changing) capacity, it is clear that capacity is actually measured in shades of grey.

A similar misconception is that once capacity is lost, it can never be regained. Dementia is commonly what people think of when they think of someone lacking capacity. Dementia is a degenerative disease – once it develops, it does not improve. But in some cases, such as those who are in a coma, capacity can be regained.

The case of Britney Spears has been closely followed over the past couple of years. Britney was placed into a Conservatorship (similar to a Deputyship in England and Wales) following issues with her mental health in 2008. In 2021, the Conservatorship was brought to an end following a number of hearings, signalling that Britney had regained sufficient capacity to begin managing her own life again. Reports in the media suggest that she may have regained capacity long before the Conservatorship was actually brought to an end.

So what is the situation in England and Wales if someone regains capacity?

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