This first of two articles considers the issue of mental capacity more generally. In our second article, we consider who can carry out a mental capacity assessment. To speak to our Lifetime Planning and Wills Team, call them on 01225 755656. Alternatively, you can email them, or complete the Contact Form at the foot of this page.
Having mental capacity means you have the ability to make and communicate your own decisions. You may lack mental capacity if you are not able to do one or more of the following:
- Understand information that relates to making a decision.
- To retain that information long enough to make the decision.
- Use or weigh the information you have been given to come to a conclusion.
- To communicate your decision (this can be by non-verbal means such as squeezing a hand when prompted).
It’s important to remember that:
- You are assumed to have mental capacity until it’s proven that you do not.
- Your ability to make decisions can fluctuate, even over shorter periods, perhaps even dependent on the time of the day.
- You may have the mental capacity to make some types of decision but not others.
Common reasons for lacking mental capacity include:
- mental illness;
- an brain injury;
- a severe learning disability;
- a stroke.
However, just because you suffer from one of these conditions does not necessarily mean you lack mental capacity.
Mental Capacity Act 2005
The Mental Capacity Act 2005 is the legislation that offers protection to people who may lack mental capacity. The Act sets out clearly how decisions should be made on behalf of people lacking the mental capacity to make those decisions themselves.
The Act requires decisions to be made in the person’s best interests. If there is disagreement as to what is in the person’s best interests, the dispute must be referred to the Court of Protection.
The Court of Protection oversees the operation of the Mental Capacity Act. It deals with all issues concerning people who lack mental capacity, including healthcare and financial matters. Common types of dispute referred to the Court include:
- Whether or not a person has mental capacity.
- What care a person should receive.
- Where a person should live.
- With whom a person should have contact and the nature of that contact.
- The nature and extent of serious medical treatment (including whether to continue ‘life support’ or undergo major surgery).
Mental Capacity Act 5 principles
The Mental Capacity Act sets out 5 core principles:
- Assume a person has the capacity to make a decision themselves, unless it’s proved otherwise.
- Wherever possible, help people to make their own decisions.
- Do not treat a person as lacking the capacity to make a decision just because they make an unwise decision.
- If you make a decision for someone who does not have capacity, it must be in their best interests.
- Treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms.
Lasting Power of Attorney Solicitors
A Lasting Power of Attorney (LPA) is a legal document that allows you to choose people – often members of your family – who can make decisions on your behalf if you lose mental capacity. You can decide whether your Lasting Power of Attorney covers:
- property and financial matters;
- your health and welfare;
- or both.
An Enduring Power of Attorney (EPA) made before the law changed on 1 October 2007 remains valid. EPAs were restricted to making decisions over financial affairs and accessing a person’s information. They do not cover health and wellbeing. Anybody over 18 with mental capacity can make a Lasting Power of Attorney.
It’s important to remember that both an EPA and LPA must be registered. While an LPA can be registered at any time, a health and welfare LPA will only be effective once the person has lost mental capacity.