What is Mental Capacity?
The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who may not be able to make their own decisions. ‘Capacity’ is the ability of a person to make decisions that may have consequences for themselves and/or for others affected by the decision.
There is a common misconception that losing mental capacity only happens to older people, whereas the reality is that losing mental capacity can happen to anyone at any age. Something as common as a head injury that temporarily impairs your brain function can cause someone to lose capacity, it does not just relate to permanent degenerative conditions such as Alzheimer’s disease.
Some examples of how a person’s mind may be impaired include:
- mental health conditions
- conditions that cause confusion, drowsiness or a loss of consciousness
- severe learning disabilities
- brain damage
- intoxication caused by misuse of drugs/alcohol
All these conditions can affect someone’s ability to make and understand the impacts of a decision. Fortunately, there are options available for anyone that loses capacity.
If you are concerned about your capacity to consent to any procedures and treatments in the future, you can complete a legally binding Advanced Decision, also known as an “Advanced Directive” or “Living Will”. An Advanced Decision is a document that an adult makes while they have capacity to refuse the giving or continuing of specific medical treatment in specific future circumstances when they have lost capacity. The Advanced Decision ensures the incapacitated individual is in the same position as an individual who has capacity, who is entitled to refuse medical treatment against the advice of healthcare professionals.
Lasting Powers of Attorney
If you are aged 18 or over and have mental capacity, you can choose to formally appoint someone as an Attorney to make important decisions about your health and welfare at a later stage when you may no longer have capacity. It is extremely important that you trust your attorneys to act in your best interests. It is advisable to make an LPA whilst you still have capacity so you can decide who you want to act on your behalf. Once you have lost capacity a Deputy can be assigned to make decisions for you, however you would not be able to give them any guidance or instructions like you would in an LPA. We will go into more detail about this below.
When having your LPA drafted, you can choose whether or not your attorneys can make life-sustaining treatment decisions, such as cancer treatment or an organ transplant. You can also leave preferences and instructions in the LPA to guide your attorneys in their decision making, for example, “My attorneys must not consent to any medical treatment involving blood products, as this is against my religion” or “My attorneys must not decide I am to move into residential care unless, in my doctor’s opinion, I can no longer live independently”.
Personal Welfare Deputyship
This option is usually a last resort for people who have not made any preparations whilst they still have capacity. A person can make an application to the Court of Protection to become a deputy and the court will decide if that person is suitable based on their application and the information that person provides. A deputy is usually a relative or friend of the person. If a family member or friend cannot take on the role of a deputy, a professional can be appointed instead, however this can become costly. A deputy must provide annual reports to the Court of Protection. Deputyships are also more expensive than LPAs and can take a lot longer to set up.
This type of deputyship is rarer than the Property and Affairs deputyship. They are only used in situations such as a person being at high risk of abuse, situations where there is doubt as to whether decisions will be made in someone’s best interests (because of family disagreements etc), or someone needs to be appointed to make decisions about a specific issue over time (e.g. where someone will live or decisions about treatment for an underlying health condition such as dementia).
Please contact a member of The Society of Will Writers if you are interested in discussing Advanced Decisions and Lasting Powers of Attorney. You can find a member in your area by visiting our Find a Member page, or calling the office on 01522 687 888.