Mental Capacity is something that some people may never have heard of, but it is something that we use every day to make decisions. This can be from deciding what breakfast to have in the morning, whether to drive or walk somewhere, deciding how to spend your money and even signing legal documents. All of these things require a person to have the mental capacity to make decisions and understand what they are doing.
However, sometimes a person may not be able to make decisions for themselves, whether this is due to a physical or mental illness or accident that affects their decision making-ability to act in their own best interest. This is deemed as ‘lacking capacity’.
The Mental Capacity Act 2005 for England and Wales sets out the law on how mental capacity is defined and sets out provisions to protect those who are deemed to have little to no capacity, including allowing someone to act on their behalf in their best interests.
What is mental capacity?
Your mental capacity relates to your ability to understand and retain information, making decisions and to communicate about those decisions. Mental capacity is not determined on whether or not you can or cannot make a decision in any given moment. It relates to a person’s ability to make a decision in that current moment. For example, someone may struggle to manage payments and pay their bills but they may be capable to decide whether they want to take a course of antibiotics to fight off infection. In this respect, capacity can fluctuate. Someone may have the capacity to deal with one thing but not the other in the exact same mom
Some examples may include:
– If you have dementia, you may remember your favourite song and what music you would like to listen to, but you might not be able to decide whether you require surgery and the impact this will have on you.
– If you are unconscious or in a coma, you will not be able to make a decision on whether an operation is necessary. Likewise, you would not be able to attend the bank to withdraw money from your account to pay for medical treatment.
Why is mental capacity important?
Having mental capacity is vital in order to make careful and important decisions. If you do not have capacity, then decisions relating to your property, finance, health and care could be at risk. This can include deciding what you want to eat and wear, how you spend your money, whether you want to give or refuse consent for life-sustaining treatment, attending medical appointments, the sale of your property and if you want to move into a care home, for example. Having capacity ensures that your wishes are met, your preferences are listened to and that you can still live your life according to those wishes.
The Mental Capacity Act 2005 provides the legal framework for what mental capacity is and how it can protect those that are vulnerable, and who may need decisions to be made on their behalf. It protects your individual rights whilst safeguarding those that are vulnerable. Most importantly, it ensures that there is lawful decision-making taking place, and that no one can abuse their powers by controlling your decisions.
In summary, it is important because of the following:
- Protecting autonomy and independence
- Preventing abuse or exploitation
- Ensuring lawful decision making
- Providing clarity for families and professionals
What does ‘lacking capacity’ mean?
When someone is classed as ‘lacking capacity’, this means that that person is unable to make decisions which is due to an ‘impairment or disturbance in the functioning of the mind’. The Act continues by confirming that ‘it does not matter whether the impairment or disturbance is permanent or temporary’. A person without capacity will struggle to understand, retain, use or weigh relevant information and communicate a decision.
As mentioned, capacity does fluctuate and a person may be able to make decisions in one moment for one thing but not for another. This can change over time as your mental state changes. Someone that has an illness where their thinking has been delayed may get better over time whereas, someone with dementia, their thinking most likely will deteriorate.
What are the five principles of the mental capacity act?
These five principles ensure that decisions made on the behalf of someone else are respectful of their wishes, dignity and basic human rights.
- Presumption of capacity – You should always assume someone has the potential to make a decision unless it is proven otherwise. This should not be presumed because of their age, appearance, condition or behaviour.
- Supporting decision-making – Individuals must be given assistance so they can reach their own decisions before being deemed as not being able to. This would include providing information that is clear, relevant and accessible for the person’s needs.
- Accepting ‘unwise’ decisions – If someone makes a decision that is ‘unwise’ or different, they should not be treated in a manner that is discriminatory and deemed as lacking capacity.
- Acting in the best interests – This is probably the most important principle, and this is to always act in the best interest of the person who lacks capacity. You should consider their feelings, beliefs and views as well as their health. This may mean that you need to consult with other people to help you make an informed decision.
- Choosing the least restrictive option – Before any decision is made, you must consider whether this provides a similar outcome to an option that would be less restrictive for the person in terms of their freedom and human rights.
What is the presumption of capacity?
Every person should be assumed to have capacity until proven otherwise. If someone lacks capacity, then it is imperative that you help support them to make a decision. If you believe someone has capacity without getting to know and understand them, you could be making a decision that is not in their best interest. The individual should be allowed the basic right of stating their case before you question their capacity.
Who can assess my capacity?
Mental Capacity can be assessed by anyone. This includes family members and friends that can help with daily decision making skills. However, for complex or serious matters it is best advised to conduct a Mental Capacity Assessment through medical professionals such as a GP, social worker or nurse. There are also third party companies that can provide such an assessment.
Solicitors and other professional individuals can also assess capacity and decide whether they can continue acting for the client in relation to their capacity. It is important to note that the person that is the most involved with a decision, should be the one to assess the capacity. If someone is making a Lasting Power of Attorney with a Solicitor, then that Solicitor should assess the clients capacity. If they feel that the person is showing signs of lacking capacity, then it is up to their discretion to ask for a Mental Health Assessment to be carried out.
Role of professionals
The person conducting the Mental Capacity Assessment is known as the ‘responsible person’. Whoever is assessing must be aware of the 5 core principles that are set out in Section 1 of the Mental Capacity Act 2005, which are listed above. It is also important to familiarise yourself with the Mental Capacity Act Code of Practice.
Family involvement
Most of the time family members are the people that will know the individual who is going through a capacity assessment the best. Therefore, they will know their daily routines, their medications, their dietary requirements and personal preferences. They will have an insight into the person’s life that a professional will never have. Therefore the assessor should take into consideration input from family members to help them complete the assessment. They will be consulted by the professional about the individual’s best interest, however, they do not make any final decision.
How do you test capacity?
The two stage test
In order to decide whether an individual has the capacity to make a certain decision, there are two questions that need to be answered:
Is there an impairment or disturbance of the mind or brain? This means is the person unable to make a certain decision? (Functional test).
Does this impairment mean the person cannot make a certain decision? Perhaps there is a reason that causes this impairment for instance, mental illness, learning disabilities, dementia or the effects of drugs and alcohol (diagnostic test).
The four key abilities
A person is deemed to lack capacity if they are unable to do one or more of the following:
- Understand information relevant to the decision
- Retain that information
- Use or weigh that information
- Communicate the decision
What happens if you do not have capacity?
If someone is found to lack capacity, someone else will need to make decisions on their behalf.
If you are an Attorney for the person that has lost capacity, then you will be involved in all decisions relating to either their Property and Financial Affairs or their Health and Welfare. This is in accordance with their Lasting Power of Attorney. If you are not an Attorney because there is no such document, then you can apply for a Deputyship Order with the Court of Protection to apply to act on their behalf.
If you are concerned about someone losing capacity, it may be a good option to discuss with them about their future life planning and whether it is appropriate to make provisions such as a Lasting Power of Attorney, if they are still able to do so. Either way, all decisions must be made in the best interests of the individual.
Best interests decisions
All decisions made must be made in the individual’s best interests. This will vary person to person, so it is important to know the person that you are dealing with well. Some important things to consider:
- Their thoughts and feelings
- If there is anything disturbing or influencing their decision making (ie. dementia, learning difficulties…)
- Their beliefs
- The individual’s dietary requirements
- Their care wishes
- Consideration of past experiences and current circumstances
- Their likes and dislikes. For example, do they like listening to music/reading/watching TV?
Appointed decision makers
Lasting Powers of Attorney: A Lasting Power of Attorney allows someone to appoint trusted individuals to make decisions on their behalf. It covers Property and Financial Affairs, as well as Health and Welfare. An LPA must be made while the person has mental capacity and must be registered before it can be used.
Court of Protection deputies: If someone loses capacity without an LPA in place, the Court of Protection can appoint a Deputy to act for them. Deputies are authorised to make decisions about Property and Financial Affairs and, in limited cases, Health and Welfare.
The Court of Protection: The Court of Protection deals with issues under the Mental Capacity Act 2005. It decides on capacity, resolves disputes about best interests, considers LPAs, appoints or removes Deputies, and makes rulings on medical treatment and deprivation of liberty.
When should you seek legal advice?
We always advise clients to seek legal advice when creating a Lasting Power of Attorney for when applying for a Deputyship Order because these matters can be very complex and time consuming. They also cover topics that a lay person may not consider for example, the suitability of an attorney and deputy, preferences and instructions to include and appointing a sensible Certificate Provider.
You may wish to seek legal advice when there is any uncertainty or disagreement about a person’s mental capacity. Capacity can fluctuate and obtaining clear advice can help with any doubts that you may be having. It can be invaluable where there are concerns about the mismanagement or abuse of an attorney as obtaining early advice can help protect the vulnerable and if necessary, engage the Office of the Public Guardian and/or the Court of Protection.
Professional guidance is equally helpful where decisions involve complicated or sensitive matters such as gifting, property transactions, care decisions and making Wills. Instructing a professional guarantees that professional advice is being tailored to your circumstances and ensuring that any decisions made are lawfully documented.
How can goughs help?
Goughs provides clear, sensitive advice on Wills, Lasting Powers of Attorney and Deputyships. We support both individuals planning ahead and families seeking to protect a loved one’s interests.
If you are considering an LPA, we can guide you through the process. If capacity is already in question, we can advise on the available options, including applications to the Court of Protection. To discuss your situation in confidence, please get in touch.
