What is Mental Capacity?

At some point in our lives, many of us will have to consider a difficult question: What is mental capacity, and what happens if we—or someone we love—loses it?

While it sounds like a complex legal term, the core concept is actually very simple. Having mental capacity means you have the ability to make and communicate your own decisions at the time they need to be made.

How is Mental Capacity Decided?

Legally, you might be found to “lack capacity” if you are unable to do one or more of the following 4 things:

1. Understand the information relevant to the decision.
2. Retain that information long enough to make the decision.
3. Use or weigh that information as part of the decision-making process.
4. Communicate your decision (this isn’t just speaking; it might include non-verbal cues like blinking or squeezing a hand).

See also: Who can carry out a mental capacity assessment?

Important Things to Remember

It is a common misconception that a medical diagnosis automatically means someone cannot make decisions. Here are 3 vital “golden rules” regarding mental capacity:

1. The Assumption of Capacity: You are always assumed to have capacity unless it is proven otherwise. No one can simply “declare” you incapable without a proper assessment.
2. Capacity Can Fluctuate: Someone may lack the capacity to make a decision in the morning but regain it by the afternoon. It can also change depending on how tired or unwell a person feels.
3. Decision-Specific: You might have the capacity to decide what you want for lunch or what clothes to wear, but lack the capacity to make complex decisions about selling your house.

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Common Reasons for Lacking Capacity

There are many reasons why someone might struggle to make decisions. These can include:

• Dementia or Alzheimer’s
• Mental health conditions
• Acquired brain injuries or strokes
• Severe learning disabilities

Crucially: Having one of these conditions does not automatically mean you lack capacity. The focus is always on the specific decision being made at that specific moment.

The Mental Capacity Act 2005: Your Protection

The Mental Capacity Act 2005 is the legal framework designed to protect and empower people who may lack capacity. Its primary goal is to ensure that, if a decision must be made on your behalf, it is made in your best interests.

The Act is built upon 5 Core Principles:

1. Presumption of Capacity: Always assume a person can make their own decision unless proven otherwise.
2. Support to Decide: Give people all the help they can get to make their own decisions before concluding they cannot.
3. The Right to be Unwise: Just because a decision seems “eccentric” or “unwise” to others doesn’t mean the person lacks the capacity to make it.
4. Best Interests: Any act or decision made for someone lacking capacity must be in their best interests.
5. Least Restrictive Option: The decision-maker must choose the option that interferes least with the person’s basic rights and freedoms.

The Court of Protection

If there is a serious disagreement about what is in a person’s “best interests”—such as where they should live or whether they should receive medical treatment—the matter may be referred to the Court of Protection.

This court oversees the Mental Capacity Act and handles disputes regarding:

• Whether or not a person actually has mental capacity.
• Serious medical treatment (such as life support decisions).
• Financial, property, and welfare disputes.

Planning Ahead: Lasting Power of Attorney

The best way to stay in control of your future is to choose who should speak for you if you ever lose capacity. This is done through a Lasting Power of Attorney (LPA).

There are two types of LPA:

• Property and Financial Affairs: Covers money, bills, and your home.
• Health and Welfare: Covers medical care, daily routine, and moving into a care home.

Note: If you made an Enduring Power of Attorney (EPA) before October 2007, it is likely still valid, but it only covers financial matters, not your health and welfare.

By setting up an LPA while you have capacity, you ensure that people you trust—usually family or close friends—are the ones making the big calls, rather than a court-appointed stranger.

Guide to Lasting Power of Attorney