What Is ‘Mental Capacity’ & How Does It Affect A LPA?

What is mental capacity?

Put simply, mental capacity is being able to make your own decisions.

You may lack mental capacity if you can’t:

• understand information about a decision,
• remember this information,
• use this information to make a decision, or
• communicate your decision.

Decisions such as what you want to buy for the weekly shop, what you’d like to wear, how you’d like to be cared for in later life or if you need to have surgery are some examples.

There is something called the Mental Capacity Act (MCA) which is designed to empower people who may lack the mental capacity to make their own decisions. This can be about their care and treatment, as well as everyday decision making.

This act will cover you if you are over 16 and live in England and Wales.

Examples of people who may lack capacity include those with:

• Dementia
• Severe learning disability
• Suffered a brain injury
• Suffered a stroke
• A mental health illness
• Unconsciousness (suffered by accident or anaesthetic)

It is important to note that just because a person has one of these health conditions, doesn’t mean they lack the capacity to make a specific decision.

How is mental capacity decided?

The Mental Capacity Act (MCA) has a test to see if you have the capacity to make a decision when you need to.

Your mental capacity has to be assessed. Someone cannot simply state that you don’t have it. Therefore, anyone who thinks that you don’t have capacity should be able to prove this.

They need to be able to show that you don’t have capacity to make a certain decision when the decision needs to be made. For example, if a professional (such as a Doctor) believes that you lack mental capacity to make a decision about your treatment or care, they must do this test with you.

Typically speaking, a capacity assessment should be related to a specific decision that you are making. For example, your care or a treatment plan. This is because you might have capacity to make a certain decision but lack capacity to make a different decision. For example, you might be able to decide what treatment you want but you are unable to make decisions about paying bills or looking after finances.

There are 2 stages to a Mental Capacity Test.

Stage 1:there must be proof that you have an illness or injury that affects the way your brain or mind works, and

Stage 2:if you do, if it affects you so much that you are unable to make a specific decision at a certain time.

*Stage 2 will only apply if you have been given enough support to try and make thedecision for yourself.

If you do not agree with the results of the test, there are steps you can take. You can discuss it further with your assessor, seek a second opinion, use mediation (to help discuss the results), or in extreme cases if an agreement cannot be reached, apply to the court of protection or Office of the Public Guardian.

Mental Capacity and Lasting Power of Attorney

As we get older, the risk of Dementia can come into play, as well as other long-term illnesses, which may affect everyday life. Our mental capacity can become lesser as a result. This is where it is worth considering the benefits of appointing a Lasting Power of Attorney. 

Discussing the possibility of losing our faculties is not an easy conversation; or a situation we like to think about. But the reality is, if you were to suffer a stroke, serious accident or dementia without something being in place first, it would likely make the situation worse.

If for example, you lose mental capacity, your relatives cannot simply just take over your everyday tasks, such as your banking, paying utility bills and making decisions on your behalf. They need consent and power to do.

Even if the money is for your care, they cannot simply access your bank accounts without authority. Unless you’ve a Power of Attorney, loved ones would need to apply through court, which can be long and costly.

How are decisions made for me if I don’t appoint an LPA and lose capacity?

Anyone who makes a decision for you must follow the five key principles of the Mental Capacity Act. They must also follow the Mental Capacity Act Code of Practice and only make decisions that are in your best interests.

1: A presumption of capacity

2: Individuals being supported to make their own decisions

3: Unwise decisions

4: Best interests

5: Less restrictive option

You can learn more about the five main principles of the Mental Capacity Act.

What decisions can and can’t be made for me?

Most decisions can be made for you. Common decisions made, include:

• Financial decisions
• Medical treatment
• Day to day support

However, there are some decisions or actions that can never be decided for you:

• Voting
• Placing a child for adoption
• Getting married or having a civil partnership

For advice and support in all matters relating to powers of attorney and family support, please contact us at MT Legal Services Ltd.