01.01.24

Having mental capacity to make our own decisions is something that many of us take for granted. However, in reality, any of us could face an accident or illness which means our ability to make decisions for ourselves fluctuates or is lost on a short-term, or even permanent, basis.

In this piece we will review the process for making decisions where a person’s mental capacity is changing or has been lost.

What is mental capacity?

Mental capacity refers to a person’s ability to understand and make decisions. To make a decision you must be able to:

• understand all the information that is relevant to the decision;
• retain the information;
• use it to make the decision; and
• communicate your decision

Therefore, with each and every decision that needs to be made, it is important to determine whether a person has the capacity to make the decision for themselves. This is one of the main principles of the Mental Capacity Act 2005 (MCA).

Our previous blog on the MCA with more information on how to determine whether a person has capacity can be found here.

Mental capacity and decision making

Another core principle of the MCA is that we must start with the presumption that a person has the capacity to make their own decisions. A person should be allowed and empowered to make their own decisions whenever possible, and this must be considered before alternative arrangements are made.

Having a diagnosed condition or being in a position where communication is limited, doesn’t necessarily mean that a person does not have mental capacity. We may need to take steps to assist that person in the decision making process.

This might mean presenting information to the individual in different ways, for example:

• avoiding times when medication has a negative effect
• talking to the person in a more comfortable environment
• talking at a particular time of day that suits them better

If the individual can make their own decisions but finds speaking and writing difficult, consider using alternative communication tools. They may be able to communicate by blinking their eyes or squeezing a hand. For larger and more complicated decisions, a speech and language therapist might help, and special aids and technology can assist too.

With a progressive condition, it may be necessary to make a number of changes over time to involve the individual in making their own decisions for as long as possible.

Also remember that everyone has a right to make an unwise or unusual decision if they have mental capacity.  The decision may seem wrong to others, but you can’t assume it has been made because they lack capacity. Their decisions should be respected.

When can someone make decisions on behalf of another person?

There is no legal right for the next of kin or close family to make decisions on behalf of their partner or relative.  It is possible that family are consulted in some situations, usually where medical treatment is being considered, but this doesn’t always happen and their views and opinions do not have to be taken into account.  Many people therefore choose to make Lasting Powers of Attorney (LPAs).

LPAs are legal documents in which you give authority to another person (known as an ‘attorney’) to make certain decisions on your behalf if you become incapable of making your own decisions.

Further information on LPAs can be found here:

https://www.renaissancelegal.co.uk/resource/lasting-power-of-attorney-information/

Property & Financial Affairs LPA

If capacity is diminishing or has been lost and the person has created a Property & Financial Affairs LPA (or an Enduring Power of Attorney prior to October 2007) then their attorney can assist with managing their financial affairs.  If it is appropriate to do so, the attorney should review all of their finances and find out what assets (bank accounts, savings, investments) they have, what income they receive (employment, pensions) and whether there are regular payments they make (utility bills, credit cards).  The LPA or EPA can be registered with each of the organisations and the attorney can then deal with all financial matters on behalf of the person.

Health & Welfare LPA

They may also have made a Health & Welfare LPA which allows the attorney to make some decisions if the person lacks mental capacity to make these themselves.  This can include:

• consenting to medical treatment
• agreeing living arrangements
• arranging personal care.

With very serious decisions, such as deciding on life-sustaining treatment options, the attorney will be involved in the decision making process along with the medical professionals.

A copy of the Health & Welfare LPA should be given to the person’s GP so it can be noted on their medical records.

If an LPA is not an option

Progressive conditions such as dementia or Parkinson’s disease may lead to a decline in mental capacity.

For those without LPAs and unable to make them, we have prepared a separate, more detailed article for each example. Follow the links below to the scenario that is most applicable for you and your family’s circumstances.

• Some conditions, health issues or mental health problems may affect mental capacity for short, temporary periods. Read more here.
• A brain injury or stroke may cause mental capacity to be lost suddenly, or a medical condition may lead to a loss of mental capacity permanently. Read more here.