What is Mental Capacity and the Court of Protection?

January 22, 2021 12:00 pm

mental capacity and court of protectionWhat is Mental Capacity? 

Your ‘mental capacity’ is your ability to make your own decisions at the time a decision needs to be made. Someone is said to be lacking in mental capacity if they are unable to do one or more of the following four things:

  • understand information given to them relevant to a particular decision
  • retain the information given to them for long enough to be able to make the required decision
  • use or weigh up all the information available before making your decision; and/or
  • to communicate their decision (whether by talking, using sign language or any other means).

Mental incapacity can be due to several reasons, including those who have suffered a stroke, a brain injury, or disability such as a mental health problem, dementia, or a learning disability.

However, just because  a person has one of these health conditions does not always mean they lack the mental capacity to make a specific decision for themselves. Whilst a person with a learning disability for example, may lack the capacity to make major decisions, this does not necessarily mean they do not have the capacity to make other decisions for themselves such as what to eat, wear and do each day.

A person with mental health problems may be unable to make decisions when they are unwell, but able to make them when they are well.

Other illnesses such as dementia are likely to cause someone to lose the ability to make decisions as the dementia progresses and gets more severe.

If you lose mental capacity the Mental Capacity Act 2005 (MCA) protects you and your rights.

What is the Mental Capacity Act?

The Mental Capacity Act (MCA) is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment. It applies to people aged 16 and over.

It covers decisions about day-to-day things like what to wear or what to buy for the weekly shop, or serious life-changing decisions like whether to move into a care home or have major surgery.

Anyone who makes decisions on behalf of another individual must follow the five key principles of the Mental Capacity Act. These five principles are:

  1. Presumption of capacity
  2. Support to make a decision
  3. Ability to make unwise decisions
  4. Best interest
  5. Least restrictive

The principles under 4 and 5 only apply when a person has been assessed to not have the mental capacity regarding the decision in question. Whilst it is not a principle of the Act, it is key to remember that mental capacity is time and decision specific.

They must also follow the Mental Capacity Act Code of Practice and only make decisions that are in your best interests. Furthermore, before someone can make decisions on behalf of an incapacitated individual, they should undertake a comprehensive mental capacity assessment.

What is the Court of Protection?

The Court of Protection is responsible for assisting people that no longer have the mental capacity to make decisions. They are responsible for:

  • deciding whether someone has the mental capacity to make a particular decision for themselves
  • appointing deputies to make ongoing decisions for people who lack mental capacity
  • giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
  • handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
  • making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration
  • considering applications to make statutory wills or gifts
  • making decisions about when someone can be deprived of their liberty under the Mental Capacity Act

How can you plan for the future?

If you are worried that you or a loved one might lose mental capacity in the future, there are things that you can do in preparation, including considering the following documents:

Lasting Power of Attorney – A Lasting Power of Attorney means that you give a trusted person or people the power to make decisions for you if you lose the ability to decide for yourself.  There are two types of LPA and you can read more about these in our previous blogs by clicking on the links below:

Make an advance statement – this is not legally binding; however, medical professionals should still make practical effort to follow your wishes. It is a general preference about your treatment and care, and you can make an advance statement if you have mental capacity at the time.

Make an advance decision – this is legally binding; and It gives you the legal right to refuse specific medical treatment in future when you may not have the mental capacity to make the decision for yourself at that time. An advanced decision cannot be used for anything else.

Mental Capacity and Court of Protection Solicitors

This area of law can often be complex, with a number of critical legal procedures that should be followed. It is advisable to seek the appropriate legal advice to avoid any possible problems or disputes that can arise during the capacity assessment process, which could result in decisions being made by health and social services, instead of the individual or by a preferred loved one or family member.

At Larcomes, our specialist solicitors have the knowledge and expertise to provide expert guidance on all areas of mental capacity, court of protection and lasting powers of attorney.

To find out more about the Mental Capacity Act, making applications to the Court of Protection or any other matters discussed in this article, you can speak to our specialist private client team who will be able to discuss the most appropriate solution for you and your circumstances.

Please give us a call on 023 9244 8100 or make an online enquiry

Please note that this article is not intended as legal or professional advice, it is for general guidance only and updates to the law may have changed since it was published.


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