Mental capacity is the ability to make decisions in a best interests determination on a particular issue so as to be mentally capable of giving proper consent or agreement. Determining mental capacity requires the information on which the decision to be made to safeguard the person's welfare. A lack of mental capacity to process the information and make decisions is a legal disability leaving the person incapable of instructing a solicitor (s.3 Mental Capacity Act 2006, 26 Explanatory Notes to the Mental Capacity Act (2005); 1.6 Family Law Protocol (Law Society 2010)).