What is Mental Capacity

  1. Retain information long enough to be able to decide on it.
  2. To communicate your decision. This can be non-verbal.
  3. Understanding information that relates to the decision that is made and being able to weigh the information you have been given to come to a conclusion.

The listed below are the common reasons for lacking capacity:

  • Brain injury
  • Severe learning disability
  • Dementia
  • Mental illness
  • Stroke

You are assumed to have mental capacity until it is proven you are not.

You may have the mental capacity to make some decisions but not others.

Your ability to make a decision can fluctuate, even over a short period of time.

However, just because you suffer from one of these conditions does not necessarily mean you lack mental capacity.

Mental Capacity Act 2005

This legislation offers protection for people who are deemed to lack mental capacity.  The Act clearly sets out decisions that should be made on behalf of a person that lacks capacity and how such decisions are to be made in the person’s best interest.

In the event that disagreement as to what is in the best interest of a person who lacks the capacity, the dispute will be referred to the court of protection. The court of protection deals with the operation of the Mental Capacity Act.

The listed below are the type of disputes carried out by the Court of Protection.

  • Whether person has the mental capacity
  • Where a person should live
  • The level of care a person should receive
  • With whom personal who lacks capacity should contact

Mental Capacity Act 5 principles

The Mental Capacity Act sets out 5 core principles:

  • Assume a person has the capacity to make a decision themselves unless it’s proved otherwise.
  • Wherever possible, help people to make their own decisions.
  • Do not treat a person as lacking the capacity to make a decision just because they make an unwise decision.
  • If you make a decision for someone who does not have the capacity, it must be in their best interests.
  • Treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms.

Lasting Power of Attorney Solicitors

A Lasting Power of Attorney (LPA) is a legal document that allows you to choose people, often family members, who can make decisions on your behalf if you lose mental capacity.

You can decide whether your Lasting Power of Attorney covers:

  • property and financial matters.
  • your health and welfare.
  • or both.

It’s important to remember that both an EPA and LPA must be registered. While an LPA can be registered at any time, health and welfare LPA will only be effective once the person has lost mental capacity. Our Solicitors in Enfield are ready to be of help to you today.