Have you ever considered what would happen if an accident, illness or condition meant you could no longer make an important decision for yourself?
The Mental Capacity Act 2005 provides a legal framework for supporting and protecting people who may be unable to make particular decisions. It applies in England and Wales and covers decisions about areas such as healthcare, personal welfare, money and property.
Why Does Mental Capacity Matter?
Most people do not think about losing the ability to make decisions until a crisis happens.
However, mental capacity can be affected by conditions and circumstances including dementia, a stroke, a brain injury, a learning disability or certain mental health problems. A person may be able to make some decisions but not others, and their ability to decide may change over time.
Planning ahead allows you to have more control over who can support you and how future decisions should be made.
What Does the Mental Capacity Act Do?
The Act has two main purposes:
• To support people to make their own decisions whenever possible
• To protect people when they genuinely cannot make a particular decision for themselves
It is not enough to assume that someone lacks capacity because of their age, appearance, diagnosis or because they have made a decision others consider unwise.
The Five Principles of the Mental Capacity Act
The Act is based on five important principles.
1. Capacity Must Be Assumed
Every adult must be treated as having capacity unless it has been established that they cannot make the particular decision in question.
2. Support Must Be Provided
A person should not be treated as unable to decide until every practical step has been taken to help them.
This could include presenting information more clearly, using a different form of communication or choosing a more suitable time and place for the discussion.
3. People Can Make Unwise Decisions
Making a decision that other people disagree with does not automatically mean someone lacks capacity.
4. Decisions Must Be in the Person’s Best Interests
Anything done or decided for a person who lacks capacity must be in their best interests.
5. The Least Restrictive Option Should Be Chosen
Any action taken should interfere as little as possible with the person’s rights, freedom and independence.
Mental Capacity Is Specific to the Decision
Mental capacity is not simply something a person either has or does not have.
Someone may be able to decide what they would like to eat or wear but be unable to understand a complicated financial transaction. Capacity must therefore be considered in relation to the particular decision at the time it needs to be made.
What Happens If You Cannot Make a Decision?
Where someone lacks capacity, decisions may be made by an authorised person or organisation, depending on the circumstances.
This could include:
• An attorney appointed through a Lasting Power of Attorney
• A deputy appointed by the Court of Protection
• A health or social care professional making a specific best-interests decision
Where no valid Power of Attorney is in place, an application to the Court of Protection may be required for someone to make ongoing financial or welfare decisions.
Take Control with a Lasting Power of Attorney
A Lasting Power of Attorney, commonly known as an LPA, allows you to choose people you trust to make certain decisions for you if you become unable to make them yourself.
There are two types:
• Property and Financial Affairs LPA, covering matters such as banking, bills, property and investments
• Health and Welfare LPA, covering matters such as care arrangements, medical treatment and day-to-day welfare
An LPA must be made while you have the mental capacity to understand and approve it. It must also be registered with the Office of the Public Guardian before it can be used.
Don’t Wait for a Crisis
Planning ahead can help you:
• Choose who you trust to support you
• Make your wishes known
• Reduce uncertainty for your family
• Avoid the potential delay and expense of a Court of Protection application
• Retain greater control over your future care and finances
Speak to your loved ones, record your wishes and consider putting both types of LPA in place while the decision remains yours to make.
How Do You Set Up a Health and Welfare LPA?
The process generally involves:
1. Choosing your attorney or attorneys
2. Deciding how they should make decisions
3. Recording any instructions or preferences
4. Choosing a certificate provider to confirm that you understand the LPA and are not being pressured
5. Completing and signing the document correctly
6. Registering it with the Office of the Public Guardian
The LPA cannot be used until it has been registered. Mistakes can delay registration or cause an application to be rejected, so professional guidance may be valuable where your wishes or family circumstances are complicated.
Don’t Leave It Until You Need It
A Lasting Power of Attorney can only be created while you have the mental capacity to understand what it means and decide who should act for you.
Once capacity has been lost, it is too late to make an LPA. Your family may then need to explore a Court of Protection application or rely on professionals to make individual best-interests decisions.
Making an LPA is not about expecting the worst. It is about choosing who you trust, making your wishes clearer and giving your family the authority and guidance they may need.
This article provides general information and should not be treated as legal advice. The Mental Capacity Act 2005 applies in England and Wales; different legislation applies in Scotland and Northern Ireland.
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