Mental Capacity Act
The capacity test is for a person unable to make a decision for themselves because of an impairment or disturbance in functioning of the mind or brain. It can be a temporary condition. The only relevance is whether the person cannot make a decision when one has to be made. The person lacks capacity if they are unable to understand the relevant information, retain that information for so long as it takes to make the decision, weigh it up and communicate the decision.
All appropriate help must be given to the person to enable them to make a decision. If someone else has to make the decision for them then it must be in their best interest. The best way of avoiding problems and expense is to make a Lasting Power of Attorney.
If no LPA has been made then the person without capacity might be unable to sign a cheque or use a credit card. Problems really mount up if they cannot sign the documents to sell a house if moving to a new area or downsizing. If the Court of Protection have to appoint a Deputy, this will be very slow and expensive.
If the situation in relation to finances for someone without capacity can cause problems then in a case where someone needs or is receiving medical treatment, the situation can be quite profound. Where life and death decisions have to be decided, an application would have to be made to the Court of Protection. The Court will take into account the views of an individual when making a decision on their behalf but if this involves the withdrawal of treatment which would lead to death, it is important to have put those wishes in a written advance directive.
Expert legal advice
These matters are too important to be left to generalists. Dealing with conveyancing, investments, Wills/Trusts, or commercial law does not give the detailed grounding in the fast developing new law relating to mental capacity. At odonnells Philippa Curran and Christine Makinson specialise in Mental Capacity law and procedure. They have been involved in some of the leading cases (go to the archive section on our news and articles page for more information).
Deprivation of Liberty Safeguards
It is possible for someone without mental capacity to be deprived of their liberty. Deprivation of Liberty Safeguards are designed to regulate this.