If you lose mental capacity, or because of dementia you are unable to communicate you wishes, it may be necessary for someone else to make decisions on your behalf about your finances and your health and welfare.
If you haven’t appointed anyone to act, such decisions may be made strangers who have no idea of your wishes. A local authority may obtain authority to look after your finances. Doctors will give you the medical treatment they consider appropriate.
Where you have close family would you be happy with any of them making decisions on your behalf?
If you are not married you may find a hospital more willing to listen to your siblings than your partner.
We set out below the legal issues you need to consider.
Mental Capacity Act 2005 and Code of Practice
The law relating to mental capacity is principally contained in the Mental Capacity Act 2005 (‘the Act’) and in the Mental Capacity Act 2005 Code of Practice (‘the Code’) . Anyone dealing with a person lacking mental capacity must comply with both the Act and the Code. The Code sets out detailed guidance on how to comply with the main provisions of the Act.
The main legal tools available are:
- Lasting Powers of Attorney for finances and personal welfare (these are separate)
- An Advance decision to refuse medial treatment
- The Court of Protection
- S.1 Mental Capacity Act 2005
The Court of Protection
The role of the Court of Protection (‘COP’) is to safeguard the best interests of all vulnerable people. They supervise the operation of all Lasting Powers of Attorney, Advance decisions and any other matters that may affect anyone lacking mental capacity. Where there is no lasting Power of Attorney in place an application can be made to the COP for a person to be appointed a Deputy to look after a person finances or their personal welfare.
You don’t get to chose who may apply to be your Deputy. In the absence of a close family member it may be the local authority.
Proceedings in the COP are costly and time consuming. The COP can also take a far more intrusive role in the management of your finances and welfare
The COP have extensive powers and discretion when it comes to managing a persons welfare and finances. Amongst these is the power to order the creation of a Statutory will. This can either replace an existing will or be ordered where no will exists.
S.1 of the Mental Capacity Act 2005 (‘the Act’) and the Mental Capacity Act 2005 Code of Practice (‘the Code’)
Anyone holding a Lasting Power of Attorney or acting under an Advance Decision must comply with the Act and the Code . Their provisions also apply to anyone who comes into contact with a person who lacks or may lack mental capacity. This would include all doctors, nurses, social workers, lawyers, carers and others.
When considering mental capacity you cannot take a blanket approach. Just because a person doesn’t have the mental capacity to manage their finances, doesn’t mean they don’t have the mental capacity to make a will. Mental capacity may also fluctuate as a result of illness or other conditions.
In all dealings with anyone the principles of S1 of the Act must be observed:
there is an assumption you have the capacity to make a decision until its proved otherwise. This must be considered on a case by case basis.
you must be given all practicable help to make that decision.
You have the right to make unwise decisions.
all acts done on your behalf must be in your best interest
before any act is done consideration must be given as to whether there is a better way to implement it