Managing Mental Incapacity

The ability to make our own decisions is vitally important to maintain independence. From small choices such as what to have for breakfast, to life-changing decisions such as whether to buy or sell our home, we exercise mental capacity on a day-to-day basis.

So, what happens if we or someone we love loses their mental capacity? Unfortunately, brain injuries and illnesses such as dementia affect more people every day, reducing or eliminating an individual’s ability to make their own decisions.

In some circumstances, the affected individual may have planned for this possibility by creating a Lasting Power of Attorney or an Advance Decision. In other circumstances, the individual may be unable to create these documents, and their relatives or close friends will have to make an application to the Court of Protection for authorisation to make decisions on their behalf.

Whatever the situation, before someone can make a decision on behalf of an incapacitated individual, they must apply the five fundamental principles of the Mental Capacity Act 2005.

Our specialist Court of Protection lawyers have extensive experience providing advice on the Mental Capacity Act 2005, establishing whether a decision made on behalf of an incapacitated person is in their best interests, advising on deprivation of liberty, and making applications to the Court of Protection.

We understand how stressful the challenges associated with caring for a mentally incapacitated person can be, particularly where disputes about their best interests arise. Our goal is to support you as much as possible, providing you with tailored advice on your options and seeking to resolve any disputes as amicably and efficiently as possible.

What does mental capacity mean?

Mental capacity refers to the ability to make decisions about everything from your day-to-day routine and activities to managing your financial affairs.

People may lose their mental capacity to make a decision for a variety of reasons, including:

• Dementia (such as Alzheimer’s)
• Accidents which cause a brain injury
• Stroke
• Severe mental health conditions
• Severe learning difficulty

Mental incapacity can be permanent or temporary (People who lack mental capacity may be unable to do things such as:

• Make a valid Will (called lacking Testamentary Capacity)
• Sign important legal documents
• Consent to or refuse medical treatment

What is a mental capacity assessment?

Under the Mental Capacity Act 2005, everyone is assumed to have mental capacity until an assessment establishes otherwise. Wherever possible, the affected person must be supported to make decisions by themselves. However, where you suspect a person is unable to make a specific decision, the Act outlines what is required to assess capacity.

There are two stages to the test:

• Does the affected person have an impairment or disturbance of brain function? This can include brain illnesses, injuries such as concussion, mental illness, or drug and alcohol use.
• Does the impairment or disturbance inhibit the affected person from making a specific decision when they need to make it, and no support can help them make the decision?

A person is unable to make a decision when:

• They do not understand the information provided about the decision or what making the decision means
• They cannot retain information needed to make the decision
• They cannot process the information needed to make the decision or weigh up the positives and negatives
• They cannot communicate their decision. Communication need not be through words but could be through signs or other non-verbal cues and taking a long time to communicate does not matter. You should try to find a method of communication if possible before establishing mental incapacity.

What does ‘best interests’ mean?

All decisions made on behalf of someone lacking mental capacity must be made in their best interests. One of the few exceptions to this is when a person leaves an Advance Decision refusing certain medical treatment (including lifesaving treatment) in the future if they lose their capacity.

The Mental Capacity Act Code of Practice sets out a useful checklist to help decide whether a decision is in a person’s best interests, including:

• Deciding what’s best cannot be based solely on someone’s age, appearance, condition, or behaviour
• Decision-makers should try to involve the affected person in the decision-making process as much as possible
• If the person is likely to regain capacity, consider whether it’s possible to put off the decision
• Consider the person’s past and present feelings, beliefs, and wishes
• Consider the views of people close to the affected person, including those involved in their care
• If you are authorised to make decisions for a loved one, we can help you assess whether certain decisions are in their best interests.

Who can carry out a mental capacity assessment?

The person caring for the affected person will usually be the one to undertake the mental capacity assessment for a simple task. In many scenarios, the person is being looked after in a hospital or a care home and sometimes it will be close family members who have been authorised to make decisions by a Lasting Power of Attorney or the Court of Protection.

For more complex decisions, it may be necessary to get a professional opinion, for example from the person’s GP, social worker, or someone specialising in the person’s condition or injury.

For all Court of Protection applications, expert evidence must be supplied, such as a medical report from a specialist, in support of the application.

Our experienced Court of Protection Team can provide further advice on how and when to carry out a mental capacity assessment as well as help you access the assistance of a professional where necessary.

What our mental capacity solicitors can do for you

Our team can provide practical advice and guidance in relation to all mental capacity matters and disputes, including:

• Preparing for the future – drafting and executing Lasting Power of Attorneys and Advance Decisions to delegate decision-making and protect your interests in case you lose your mental capacity
• Court of Protection applications to obtain permission to make decisions on behalf of a loved one who lacks mental capacity
• Providing advice on the Mental Capacity Act 2005 and the law on mental capacity
• Resolving mental capacity disputes, including between family members, medical professionals, and care facilities (such as care homes and hospitals)
• Challenging mental capacity decisions, including applying to the Court of Protection to challenge a Deprivation of Liberty Order

Lasting Power of Attorneys

If you are concerned about losing your mental capacity in the future, our team can help you create a Lasting Power of Attorney to appoint one or more Attorneys to make decisions about your financial affairs and/or personal welfare should you become unable to make your own decisions in the future.

We also provide advice for Attorneys based on our extensive knowledge of the Mental Capacity Act Code of Practice, including providing advice on how to make decisions in your loved one’s best interests.

Advance Decisions

Advance Decisions are legal documents which can set out your wishes to refuse medical treatment (including life-saving treatment) in the event you cannot communicate your decision when you need to.

We can draft you a watertight Advance Decision so there can be no confusion about your wishes, relieving your loved ones from having to make difficult decisions on your behalf.

Court of Protection

If a loved one, unfortunately, appears to lose their mental capacity, we can help you apply to the Court of Protection on their behalf. Our expertise includes:

• Deputyship applications – for authorisation to make decisions on behalf of your loved one. You can apply to become a Property and Financial Affairs Deputy and/or a Personal Welfare Deputy.
• Statutory Wills – if your loved one lacks Testamentary Capacity and cannot make a valid Will, we can apply to make a Statutory Will, to ensure the incapacitated person’s wishes are respected after they die
• Making gifts – attorneys and deputies have very limited authority to make gifts on behalf of someone who has lost capacity. You may need to apply to the Court of Protection for authority.
• Sale of jointly owned property – if you jointly own property with someone who cannot sign legal documents due to mental incapacity, we can apply to appoint someone to act on their behalf

Deprivation of Liberty

Sometimes it’s necessary to restrict a person’s freedom and activities for their own welfare and safety. However, because liberty is such an important human right, if a care home or hospital responsible for your loved one’s care wants to control their movements, they must first obtain authorisation from the local authority.

If you believe a hospital or care home is restricting your loved one’s liberty and it’s not in their best interests or they actually have mental capacity, we can apply to challenge the authorisation.

Why choose our mental capacity lawyers?

We’ve been supporting individuals by providing practical and cost-effective legal services for over 80 years. We pride ourselves on our close relationships with our clients, which we often build over years as they continue to return to us for their legal needs.

We have an in-depth understanding of the acute pressures facing the loved ones of people lacking mental capacity. Whether you’re a carer for an elderly patient with dementia, or a close friend or relative has experienced a brain injury affecting their decision-making abilities, we want to use our legal knowledge to help you.

As a firm, we are accredited by the Law Society in Lexcel, the practice quality mark for exceptional client care and legal practice management.

Roythornes is independently regulated by the Solicitors Regulation Authority (SRA).

Get in touch with our private client solicitors

For further information about our private client services, get in touch with our team in Alconbury, Birmingham, Nottingham, Peterborough or Spalding.