Mental Capacity Act Explained

Older Couple Hand Holding 2019

What is the Mental Capacity Act?

The Mental Capacity Act (MCA) is the legal framework for acting or making decisions for people who lack mental capacity. The MCA is designed to protect and empower people who may lack the mental capacity to make their own decisions about their finances and their health. It applies to people aged 16 and over.

What are the five principles of the Mental Capacity Act?

A person must be assumed to have mental capacity unless it can be proved otherwise
Help the person to make their own decision whenever possible
Don’t treat the person as though they lack capacity, just because the decision they make is unwise
If you make a decision for or on behalf of someone else, it must be in their best interests
The decision made for or on behalf of someone needs to be the least restrictive of their rights and freedom of action

How do you test for capacity?

The Mental Capacity Act sets out a two-stage test which is carried out by a medical or other qualified professional. Usually, where solicitors are involved, a detailed letter will be sent to the person’s GP setting out the test and asking the GP to meet with the person to establish capacity.

Why does it matter?

If someone lacks mental capacity to make decisions relating to their financial affairs or their health and care, they will need someone with the proper legal authority to make these decisions for them.

Lasting Powers of Attorney

Lasting Powers of Attorney provide the legal authority for someone (the Attorney) to make a decision on another’s behalf (the donor). There are two types; Property & Financial and Health & Welfare. Lasting Powers of Attorney allow the donor to choose who they want to make decisions or act for them, if there comes a time when they can’t decide or act for themselves.

Lasting Powers of Attorney for Property and Financial Affairs can be used even if the donor has not lost mental capacity. But only with the donor’s consent. For example, the donor may be physically unable but still have all their mental faculties. Decisions under a Property and Affairs Power of Attorney can include; the payment of bills, care home fees, sale of a property, investing money, managing pensions etc.

Lasting Powers of Attorney for Health and Welfare can only be used once the donor has lost the mental capacity to make their own decisions relating to their health. The donor is also able to choose in the Power of Attorney document, whether they want their Attorneys to be able to give or refuse consent to life sustaining treatment, or not. Decisions under a Health and Welfare Power of Attorney can include where someone should live, the care they should receive, what clothes they should wear etc.

Lasting Powers of Attorney can only be granted whilst the person has mental capacity. So its important to make them as early as possible.

What can I do if someone has already lost capacity?

If the person prepared Lasting Powers of Attorney prior to losing capacity then the Attorneys appointed under them can make the decisions for that person. However, if the person did not make Lasting Powers of Attorney, an application may need to be made by a family member or another important person in their life, to the Court of Protection for the appointment of a Deputy. A Deputy is someone appointed by the Court to make decisions on behalf of someone who has lost capacity. The role of a Deputy is quite an onerous one. So wherever possible, we would encourage the preparation of a Lasting Power of Attorney.

But sometimes they seem ‘really with it’?

Capacity can fluctuate. We often find that some of our older clients present better first thing in the morning, rather than when they are sleepy after lunch. In some cases, mental capacity can be affected by grief, stress, drugs or alcohol. It is always best to assess someone’s capacity when ‘they are at their best’.