Losing the ability to make your own decisions can be difficult to think about, but it is an important issue to understand. If someone loses mental capacity and does not have a plan in place, decisions about their life, finances, and care may be made by others, often through a formal legal process.
AFG Law explains what happens when someone suffers a loss of mental capacity, who can step in to help, and how decisions are made if no arrangements have been put in place in advance.
What Does It Mean to Lack Mental Capacity?
A person is said to lack capacity if they are unable to make a specific decision at the time it needs to be made. This could be due to illness, injury, or conditions such as dementia.
Mental capacity is decision-specific. This means someone may still be able to manage day to day decisions, such as what to eat or wear, but struggle with more complex matters like managing finances or agreeing to medical treatment.
To determine whether someone lacks mental capacity, their ability to make decisions is carefully considered. This includes whether they can:
- Understand the information relevant to the decision
- Retain that information long enough to make a decision
- Weigh up the options
- Communicate their decision clearly
If a person cannot do these things, their mental capacity assessed may show they are unable to make that particular decision.
Who Makes Decisions if Someone Loses Mental Capacity?
If someone loses mental capacity, there may already be a Power of Attorney in place, which allows a chosen person to make decisions on their behalf. However, if no such arrangement exists and the individual does not have a Lasting Power of Attorney, there is no automatic right for a family member to step in and make decisions.
Instead, decisions may be made by professionals or through the Court of Protection.
The Role of the Court of Protection
The Court of Protection is responsible for making decisions on behalf of individuals who lack capacity. It can:
- Decide specific issues, such as medical care or living arrangements
- Appoint a deputy to make ongoing decisions
The court ensures that all decisions are made in the person’s best interests.
What Happens Without an Enduring or Lasting Power of Attorney?
An Enduring Power of Attorney (EPA) is an older legal document that allowed someone to manage financial matters if a person loses mental capacity. These have now been replaced by Lasting Powers of Attorney (LPAs), but existing EPAs may still be valid.
If there is no EPA or LPA in place, decisions must go through the Court of Protection, which can be time-consuming and costly.
Without a plan:
- Loved ones may face delays in accessing finances
- Decisions about care may be made by professionals
- There may be added stress during an already difficult time
What is a Deputy?
If ongoing decisions are required, the court may appoint a deputy. This could be a family member, friend, or sometimes a professional.
There are two main types of deputy:
Property and Financial Affairs Deputy
This deputy manages financial matters such as bank accounts, bills, and property. They deal with property and financial affairs, ensuring the person’s finances are handled responsibly.
Personal Welfare Deputy
A personal welfare deputy makes decisions about care, living arrangements, and medical treatment. This can include decisions about health and welfare, although these deputies are appointed less frequently.
All deputies must act in the person’s best interests, and their authority is legally binding.
The Role of Professionals
If no suitable family member is available, professionals may become involved.
A social worker may assess the person’s needs and help arrange care. Medical professionals will make decisions about medical treatment, always acting in the individual’s best interests.
The Office of the Public Guardian supervises deputies and ensures they carry out their duties properly. They help protect vulnerable individuals and investigate concerns where necessary.
How Are Decisions Made?
When someone lacks mental capacity, decisions must follow the principles of the Mental Capacity Act.
This means:
- Decisions must be made in the person’s best interests
- The least restrictive option should be chosen
- The person should be involved as much as possible
Even if someone cannot fully communicate their decision, efforts must be made to understand their wishes, feelings, and values.
The type of decision being made will affect who is involved. For example:
- Financial decisions may involve a deputy
- Care decisions may involve a social worker
- Medical decisions are usually made by healthcare professionals
Advance Decisions and Planning Ahead
One way to prepare for the future is by making an advance decision. This allows you to set out your wishes regarding certain types of medical treatment in advance, should you later lack capacity.
An advance decision can be legally binding if it meets specific requirements. It gives clarity to healthcare professionals and ensures your wishes are respected.
Why Planning is Important
Planning ahead ensures that your preferences are followed if you ever lose mental capacity. Without clear instructions, decisions may be made by people who do not fully understand your wishes.
Having the right arrangements in place can:
- Give you control over future decisions
- Reduce stress for your loved ones
- Avoid delays and legal complications
- Ensure your finances and care are managed appropriately
How AFG Law Can Assist
At AFG Law, we understand that thinking about losing mental capacity can be difficult. However, putting plans in place now can make a significant difference in the future.
Our experienced team can provide clear and practical advice on:
- Assessing your options if a loved one lacks mental capacity
- Making applications to the Court of Protection
- Acting as or advising deputies for property and financial affairs
- Advising on health and welfare decisions
- Preparing legal documents to protect your future wishes
We can also guide you through the process if a family member has already lost mental capacity, helping you understand your responsibilities and the steps involved.