What is Mental Capacity?

The Mental Capacity Act 2005 provides a statutory framework to authorise and protect vulnerable people who may not be able to make decisions on their own. ‘Capacity’ is the ability of a person to make decisions that may have consequences for themselves and for others affected by the decision.

It is common for people to think that losing mental capacity is related to old age, however, this is not the case. You can lose mental capacity at any age. It may be related to an injury that causes a person to impair brain function, therefore losing capacity. Here are some examples of how a person’s mind can be impaired:

  • Mental health conditions
  • Conditions that cause confusion, drowsiness, or a loss of consciousness.
  • Alzheimer’s/Dementia
  • Severe learning difficulties.
  • Brain damage
  • Damage caused by drugs/alcohol.

All these conditions can affect someone’s ability to make and understand the impacts of decisions. Thankfully, there are options available for anyone who loses capacity.

Advanced Decision

An Advanced Decision, also known as an ‘Advanced Directive’ or ‘Living Will’, is a document created by an adult, whilst they still have the capacity, to refuse certain medical care in specific future circumstances when they have lost mental capacity. The Advanced Decision places the disabled person in the same position as a person with ability, allowing them to decline medical treatment despite the recommendation of healthcare specialists.

Lasting Powers of Attorney

If you are over the age of 18 and have mental capacity, you can choose to appoint someone as an Attorney to make important decisions about your health and welfare, if/when you lose mental capacity. It is extremely important to carefully choose who you want to be your attorney, you must trust them completely to act in your best interests. It is advisable to make an LPA whilst you still have capacity, so you can decide who you would like to act on your behalf. If you lose capacity without appointing an attorney, a Deputy can be assigned to make decisions for you, however, you would not be able to give them any guidance or instructions like you would with an LPA.

When you are having your LPA drafted, you can choose whether or not your attorneys can make life-sustaining treatment decisions, such as cancer treatment or organ transplants. You can also leave preferences and instructions in the LPA to guide your attorneys in their decision-making. For example “My attorneys must not decide that I should move into residential care, unless, in a doctor’s opinion, I can no longer live independently”

Personal Welfare Deputyship

This is usually a last resort option for most people who have not made any preparations whilst they still have capacity. A person can make an application to the Court of Protection to become a deputy and the court will decide if that person is suitable based on their application and the information that they provides. It is usually a relative or friend of the person that applies for deputyship. If a family member or friend cannot take on the role of a deputy, a professional can be appointed instead, however, this can become costly. A deputy must provide annual reports to the Court of Protection, Deputyships are also more expensive than LPAs and can take quite a bit of time to set up.

This type of deputyship is rarer than Property and Affairs deputyship. They are only used in situations such as a person being at high risk of abuse, situations where there is doubt as to whether decisions will be made in the person’s best interests (i.e. family disagreements) or someone needs to be appointed to make decisions about a specific issue over time (e.g. where someone will live or decisions about treatment for an underlying health condition such as dementia).

We offer professionally drafted Lasting Power of Attorney and Advanced Decisions. If you would like to find out more, get in touch with a member of our team today! We will answer any questions that you may have. All of our estate planners are full members of the Society of Will Writers.


Caitlin Duffy

Wills & Estate Planning Manager

Tel – 01928 620063

Email – caitlin@willsandtrust.co.uk