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Managing someone's legal affairs

Mental Capacity Act

The Mental Capacity Act is designed to protect people who can't make decisions for themselves or lack the mental capacity to do so. This could be due to a mental health condition, a severe learning difficulty, a brain injury, a stroke or unconsciousness due to an anaesthetic or sudden accident.

The act's purpose is:

  • To allow adults to make as many decisions as they can for themselves.
  • To enable adults to make advance decisions about whether they would like future medical treatment.
  • To allow adults to appoint, in advance of losing mental capacity, another person to make decisions about personal welfare or property on their behalf at a future date.
  • To allow decisions concerning personal welfare or property and affairs to be made in the best interests of adults when they have not made any future plans and cannot make a decision at the time.
  • To ensure an NHS body or local authority will appoint an independent mental capacity advocate to support someone who cannot make a decision about serious medical treatment, or about hospital, care home or residential accommodation, when there are no family or friends to be consulted.
  • To provide protection against legal liability for carers who have honestly and reasonably sought to act in the person’s best interests.
  • To provide clarity and safeguards around research in relation to those who lack capacity.

About mental capacity

Under the Mental Capacity Act a person is presumed to make their own decisions “unless all practical steps to help him (or her) to make a decision have been taken without success”.

Every person should be presumed to be able to make their own decisions. You can only take a decision for someone else if all practical steps to help them to make a decision have been taken without success. For example, someone might have the capacity to walk into a shop and buy a CD but not to go into an estate agent and purchase a property.

Incapacity is not based on the ability to make a wise or sensible decision.

How 'mental incapacity' is determined

To determine incapacity you will need to consider whether the person you're looking after is able to understand the particular issue that they're making a decision about. You need to consider if they have:

  • an impairment or disturbance in the functioning of the mind or brain, and
  • an inability to make decisions.

A person is unable to make a decision if they cannot:

  • understand the information relevant to the decision,
  • retain that information,
  • use or weigh that information as part of the process of making the decision, or
  • communicate the decision.

Making decisions for someone

If, having taken all practical steps to assist someone, it is concluded that a decision should be made for them, that decision must be made in that person’s best interests. You must also consider whether there's another way of making the decision which might not affect the person’s rights and freedom of action as much (known as the 'least restrictive alternative' principle).

Best interests

The Mental Capacity Act sets out a checklist of things to consider when deciding what's in a person’s best interests. You should:

  • Not make assumptions on the basis of age, appearance, condition or behaviour.
  • Consider all the relevant circumstances.
  • Consider whether or when the person will have capacity to make the decision.
  • Support the person’s participation in any acts or decisions made for them.
  • Not make a decision about life-sustaining treatment “motivated by a desire to bring about his (or her) death”.
  • Consider the person’s expressed wishes and feelings, beliefs and values.
  • Take into account the views of others with an interest in the person’s welfare, their carers and those appointed to act on their behalf.

See Applying the Mental Capacity Act for information about the Court of Protection, court-appointed deputies, the Public Guardian and independent mental health advocates. See Advance decisions to find out about how someone can make their wishes about life-saving treatment known in advance.

If you have any questions about caring and the Mental Capacity Act, call the Carers Direct helpline on freephone 0808 802 0202 or send an enquiry to Carers Direct by email.

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Last reviewed: 13/06/2012

Next review due: 13/06/2014

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