It is possible for any of us to experience a situation where our mental capacity is affected for a short period, perhaps as the result of a stroke or a short illness.  Some mental health issues can also affect a person’s ability to make decisions.

Periods of fluctuating mental capacity are perhaps the hardest to manage when decisions need to be taken as the person’s ability to make their own decisions can change.

As discussed in the introduction to this piece, we must never immediately assume that a person doesn’t have capacity to make a decision and, where mental capacity is fluctuating, there is a greater need to check capacity for each decision that is needed.

This means that for some of the more straightforward decisions, the person may be able to make those for themselves.  When more complex decisions are required, it needs to be determined whether the person can weigh up all the information necessary and consider the implications of their decision.

If there are steps that can be taken to assist that person in this decision-making process then every reasonable effort must be made to support them.  Or it may be agreed to wait for the individual to recover or improve their condition so that they can make their own decision.

However, due to their condition and some circumstances, it may be that the person doesn’t have mental capacity for a specific decision and the decision has to be made straight away. In this situation, the decision will need to be taken on their behalf.  This could be by an attorney under a Lasting Power of Attorney for Property & Financial Affairs or Health & Welfare.  If these legal documents are in place then the attorney(s) will have legal authority to deal with most of the decisions that are required.

If LPAs are not in place the next step depends on the type of decision to be made. Find out more here.

If your loved one experiences fluctuating mental capacity, they may want to consider putting LPAs in place to enable their chosen attorney to assist them at times when they are unable to make their own decisions.