My Relative is not Capable of Making Decisions Part One: What is the Mental Capacity Act?

In our previous post we explained the role of a Lasting Power of Attorney (LPA), which can be set up to ensure an individual's wishes are followed in the event they are no longer capable of making decisions for themselves. But what happens if you believe your loved one is not able to make decisions and they have not already arranged an LPA?

The Mental Capacity Act Explained

The Mental Capacity Act and accompanying framework were set up for situations where a person does not have the capacity to make their own decisions. This might be the case for a person who has learning disabilities, an illness affecting mental health, an accident or injury or a condition such as Alzheimer's and other forms of dementia. The Mental Capacity Act gives the Court of Protection a range of powers which can include deciding whether a person does lack capacity; appointing deputies to act on a person's behalf; making decisions about property, finances and care and making decisions about Lasting Powers of Attorney.

There are rules about deciding whether a person has mental capacity, with the assumption that they do unless it is proved otherwise. The individual needs to be able to:

An individual must be helped to make decisions if at all possible and if this proves impossible then any decisions made on their behalf have to be in their best interests. People still have the right to make decisions other people might think are unwise, as long as they have the capacity to do so. Another principle of the Mental Capacity Act is that when a person has lost capacity, they should still be involved and consulted as far as possible about any decisions that are made.

Deciding Someone Lacks Mental Capacity

If you believe a loved one lacks the mental capacity to make decisions, you may be able to make an application to the Court of Protection to decide the matter. If the Court concludes they do lack capacity, and they have not already set up an LPA, you can apply to become a Deputy. This means you will be able to make decisions about things like care, money and property on that person's behalf. How you apply will depend on a number of factors which we will highlight in the next part of this series.

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