Understanding mental capacity and decision making

When making a legal decision, whether it concerns health, property or finances, a person must have appropriate mental capacity.

This means that they are able to retain and understand the information they need, understand the options available to them and the consequences, and communicate their decision in some way.

A person may lack capacity if they have a severe learning disability or brain injury, or because of an illness, which may include some mental health conditions or dementia, which is often, but not always, age-related.

The Mental Capacity Act

The Mental Capacity Act 2005 (MCA) was introduced to protect and empower people who may permanently or temporarily lack the mental capacity to make decisions for themselves.

The MCA covers day-to-day activities such as setting their own daily routine, what to buy and what to eat. It also applies to major decisions like whether to move into a care home and is often applied in healthcare settings.

Under the MCA, those without capacity to make major decisions may still be able to make other decisions, such as what to wear on a daily basis or what to buy from the shop.

In order to protect vulnerable individuals, the MCA makes the following assumptions and obligations:

• A person has capacity unless proven otherwise
• A person should be helped to make their own decisions
• An unwise or strange decision does not qualify as lacking capacity
• You must act in the best interests of the person without capacity
• Treatment or care must be the least restrictive of their basic rights and freedoms

The concept of capacity is decision and time specific, i.e. is a person able to make a particular decision about their affairs at the particular moment in time when the decision has to be made?

If they are unable to make that decision, then they may appoint a trusted person to support them.

Power of attorney arrangements

A Lasting Power of Attorney (LPA) is a legal document that allows one of more people (attorneys) to make decisions on your behalf if you are no longer able to do so.

They can be put in place at any time, and only used when they are needed, such as if the person has an accident or illness that means they cannot make decisions – so long as you are over 18 and have capacity when you make the document.

There are two types of LPAs – property and financial affairs, and health and wellbeing.

You can put either one of these in place, or both, but they must be registered separately.

The Court of Protection

The Court of Protection is a specialist Court concerned with the management of the affairs of individuals who are vulnerable and who do not have capacity to look after their own affairs.

Typically, the Court will step in when a person chronically lacks capacity and must have ongoing decisions made on their behalf, or if a person does not have an LPA in place.

The Court has a variety of roles and functions including:

• To appoint deputies – they will look after and manage the property and financial affairs of the vulnerable person. The deputy will often be a relative or close friend but can be a solicitor or other legal professional.
• To supervise deputies – a deputy can only act regarding property and financial affairs to the extent allowed by the Court Order appointing them. The deputy can apply to the Court for additional authority if it becomes necessary to do so. The deputy must also submit to an annual audit.
• To provide the deputy with guidance – if there is uncertainty over a particular course of action or to rule on any dispute which might arise, such as a family dispute or issues with the Local Authority, the Court will consider submissions which are made and will hear expert evidence.

The deputy’s main role is to manage the vulnerable person’s income (pensions, etc.) and his or her investments and savings as well as the vulnerable person’s home or other land and properties which might be owned.

A deputy will not usually have any authority over the vulnerable person’s welfare and care, although the Court will make Orders in regard to care-related matters if a specific point of issue arises.

Applying to the Court of Protection

In order to apply to the Court for a deputyship, a formal capacity assessment will have to be undertaken. The applying deputy will also need to provide a lot of information about themselves, including:

• Name and date of birth
• Occupation
• National Insurance number
• Social worker and GP information
• Frequent visitors
• The amount and frequency of State benefits
• Details of any private income
• Bank accounts of the vulnerable person
• Details of any other savings or investments
• The value of any property the person owns
• Details of any outstanding bills or expenses
• The weekly or monthly fees payable to the care or residential home
• Details of the Will and executors
• LAP details, if one is in place

The Court will then review the application, decide whether an order is necessary and support you while it is implemented.

How can we help you?

The law surrounding mental capacity can be difficult to navigate at a potentially distressing time in your life.

We can help you to put plans in place in the event that you lose capacity, or help you manage affairs on behalf of someone who has lost capacity.

For further guidance on mental capacity and how you can plan for the future, please contact our Wills, Trust and Probate team today.