We must never immediately assume that a person doesn’t have capacity to make a particular decision, but there may be situations where a lack of mental capacity is obvious. For example, when a person is unconscious or suffers a serious brain injury or medical condition that affects their ability to make a decision.
A total loss of mental capacity will mean that decisions will need to be taken on behalf of that person. There is no possibility of involving the person in the decision-making process. This can be enormously upsetting for family and loved ones, who are dealing with the emotional impact of the situation as well as the practical issues of decision making.
If you or your family are facing this situation then it is important to consider what decisions are required.
Where a decision or a number of decisions are required to manage someone’s finances, it is important to check if they made a Property & Financial Affairs Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (if made before October 2007). If either of these legal documents is in place then the attorney(s) will have legal authority to deal with most or all of the financial decisions that may be required.
If there is no LPA in place then you will need to apply to the Court of Protection to become their Deputy for financial matters.
The Court of Protection can appoint a Deputy who is given specific powers to make decisions on behalf of that person. The Court can issue a Deputy Order setting out what the Deputy can and can’t do and usually gives the Deputy power to deal with day to day financial matters.
The Order is often restricted so a Deputy can’t sell a property without further approval from the Court or they can’t make gifts on behalf of the person they are acting for. The Court also requires the Deputy to provide an annual report and fulfil other duties and obligations.
For more information on the Court of Protection click here
If the person needs to apply for, or is already receiving, benefits then you can apply to the Department for Work and Pensions to become the appointee to manage these benefits. This is usually a straightforward process.
The position for making decisions regarding health and welfare matters, such as medical treatment or living arrangements, is not as straightforward. Many people understandably find this aspect more emotionally difficult than those involving finances. The process depends on what decisions are being made, and the Mental Capacity Act 2005 (MCA) sets out how this can be done.
The individual making the decision, on behalf of the person who lacks mental capacity, might be different depending on the type of decision required. It could be a carer, a health professional, a social worker or a family member. If an attorney has been appointed under a Health & Welfare LPA then they may be able to make decisions or, for serious decisions, will be involved in the process.
The decision maker must consider factors such as the person’s values, beliefs and wishes before making a decision and it is the most important principle of the MCA that any decision they make must be in the person’s ‘best interests’. The process may involve a number of people working together to determine what the options are and what is best for that person. For many decisions, this happens without any problems and the involved parties are able to agree.
If there is a dispute in the decision-making process then attempts should be made to resolve these. It might be necessary to obtain a second opinion on a particular matter or hold a ‘best interests’ meeting or conference with the relevant parties. There may be a complaints or appeals procedure that can be followed if the decision is made within a particular organisation such as the NHS.
In some situations where a serious decision is disputed, the circumstances are complex or there is particular urgency to make a decision, it may be necessary to apply to the Court of Protection to decide an issue.