Four Things You Must Know About The Mental Capacity Act 2005.

If you’re worried about losing mental capacity in the future, or a loved one has lost mental capacity. Don’t worry. The Mental Capacity Act 2005 offers protection.

For more information, please call our solicitors directly on 0203 007 5500.

What is the mental capacity act 2005?

The mental capacity act protects you when you lack the mental capacity to make decisions about your care and treatment. The Act covers various decisions ranging from day-to-day choices such as what to wear to life-changing decisions such as having major surgery.

The Mental Capacity Act applies to anyone aged 16 or over. 

Common examples of people who lack mental capacity include people suffering with:

• Dementia
• A brain injury 
• Severe learning disability

What are the five principles of the Mental Capacity Act?

When considering and confirming whether someone has mental capacity, you must first consider the five principles before making any decisions under the Act. These five principles include:

1. Presumption of mental capacity 

Presumption of capacity outlines that everyone should assume that people have capacity until proven otherwise. Therefore, it means that someone can’t assume a lack of capacity based upon someone’s age, physical appearance, behaviour, among others. Furthermore, just because someone has lost capacity in one respect doesn’t automatically mean they cannot make any decisions. For instance, someone may lack the capacity to control their financial affairs. However, they may still have the capacity to make decisions over where they live.

2. Support to make a decision

This principle outlines that you take all necessary steps to help the person make decisions for themselves before treating them as unable to make decisions. In practice, this means that you have made every effort to help the person make the decision. Therefore, you must ask questions such as:

• How can we best communicate with them?
• Is there a time of day when they’re more aware?
• Do they need any form of assistance when making a decision?

3. Ability to make unwise decisions

This principle outlines that someone isn’t automatically labelled unfit to make decisions because they make an unwise decision. Therefore, this principle ensures that someone’s ability to make decisions isn’t assessed on their decision but on how they make that decision. 

4. Best interest for the person who’s lost mental capacity

This principle is relevant when there’s confirmation that someone has lost mental capacity. This principle outlines how you should always make decisions in the best interest of the person who lacks mental capacity. The difficulty with this principle is there’s no set definition for best interest as it depends entirely on the circumstance.

5. Least restrictive

The final principle also is only a consideration after someone has been determined not to have mental capacity. This principle ensures that any decisions made on behalf of the person lacking mental capacity should always be the least restrictive option. Therefore, the person lacking mental capacity will always best maintain their rights and freedoms.

What is the mental capacity code of practice?

The mental capacity code of practice guides people who either work with or care for people who lack the mental capacity to make decisions for themselves.

The codes of practice outline what you must do if you act or make decisions on behalf of someone lacking mental capacity. 

Some common examples of people who must be familiar with the mental capacity codes of practice include:

• A Lasting Power of Attorney
• A deputy appointed under the Court of Protection
• A person who acts in a professional capacity for someone who can’t make decisions for themselves
• Someone acting on behalf of someone without mental capacity

What if my loved one is losing mental capacity?

If you are concerned that you may lose mental capacity in the future or you’re loved one is losing mental capacity, don’t worry. There are things you can do. 

If you want to make future provisions in a circumstance where you lose mental capacity, you will need to consider a lasting power of attorney (LPA). However, if a loved one has already lost mental capacity, you will need to apply for deputyship from the Court of Protection.

Below, our solicitors have outlined the difference between an LPA and a deputyship.

Lasting Power of Attorney (LPA)

An LPA is when you appoint someone to make decisions on your behalf when you lose mental capacity. You can appoint an LPA to make decisions over your health and welfare or financial affairs.

An LPA is a protective measure, which means you can only appoint an LPA if you have mental capacity. In a circumstance where you have lost mental capacity, you will not be able to appoint an LPA and will need to consider applying for a deputyship.

For more information about an LPA, please visit our powers of attorney page.

Deputyship 

You can apply for deputyship through the Court of Protection when a loved one has already lost mental capacity. If the court accepts the application and grants you ‘deputy’ you will have the legal right to make decisions on behalf of someone who has lost mental capacity.