Here, we consider the issue of mental capacity more generally. Our second article considers who can carry out a mental capacity assessment.
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What is Mental Capacity?
Having mental capacity means having the ability to make and communicate your own decisions. So, you may lack capacity if you cannot do one or more of the following:
- Understand information relating to making a decision.
- Retain that information long enough to make the decision.
- Use or weigh the information given to reach a conclusion.
- Communicate your decision (includes non-verbal means such as squeezing a hand when prompted).
It’s important to remember that:
- There’s an assumption that you have capacity until proven otherwise.
- Your ability to make decisions can fluctuate, even over shorter periods, even through the course of the day.
- You may have the capacity to make some types of decisions but not others.
Common reasons for lacking mental capacity include:
- mental illness;
- brain injury;
- severe learning disability;
- a stroke.
However, just because you suffer from one of these conditions does not necessarily mean you lack capacity.
Mental Capacity Act 2005
The Mental Capacity Act 2005 protects people who may lack capacity. The Act sets out the decision-making process on behalf of people lacking the mental capacity to make those decisions themselves.
The Act requires decisions to be in the person’s best interests. And if there’s disagreement about 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. As such, it deals with all issues concerning people lacking capacity. That includes healthcare and financial matters. Among the common types of dispute referred to the Court are:
- Whether or not a person has mental capacity.
- What care should a person receive?
- Where should a person live?
- With whom should a person 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:
- We should always 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 lacking 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 allowing you to choose people – often family members – who can make decisions on your behalf if you lose 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 are restricted to making decisions over financial affairs and accessing a person’s information. So, 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 is registrable at any time, a health and welfare LPA is only effective once the person loses capacity.