Court of Protection Associate Solicitor
The Mental Capacity Act applies to people who are aged 16 and over and protects people who lack the mental capacity to make their own decisions about various issues.
This can include decisions about day-to-day matters like whether to use social media or more important decisions such as where to live. Any decision made on behalf of a person who lacks the mental capacity must be made in their best interests.
For free initial legal advice get in touch with our Court of Protection Solicitors.
We're rated‘Excellent’In order for a person to lack capacity, they must first have “an impairment of the mind”. This can be anything that affects the way they process information, such as a severe learning disability, a brain injury or dementia.
Section 3 of the Mental Capacity Act states that a person is unable to make a decision if they’re unable to do one or more of the following:
That being said, it’s important to point out that a person must not be assumed to lack mental capacity due to:
If your loved one has been diagnosed with dementia, it often complicated when it comes to dealing with their finances. We're here to assist you and ensure the legal side of things are properly taken care of. We can provide you with support and peace of mind at a period where you may feel overwhelmed and uncertain for your loved one’s future.
If a family member or close friend loses ability to make decisions for themselves, perhaps because of dementia, a serious illness or a brain injury, the Court of Protection may be required to intervene.
If someone no longer has the mental capacity to make their own Will, a Statutory Will can be made on their behalf under the Mental Capacity Act 2005.
Every person has the right to make their own decisions if they have the mental capacity to do so. It must be assumed that a person has the capacity to make decisions, unless it can be established that the person doesn’t have capacity.
For example, if a young person decides that they’d like to live at home rather than at a supported living placement, it must be assumed that they have mental capacity to make that decision and steps must be taken to facilitate this.
It’s important that all steps be taken to ensure that the person is able to make the decision themselves. For example, if the person only spoke a foreign language, then their mental capacity should be assessed with assistance from an appropriate interpreter.
A person who makes a decision that others consider unwise shouldn’t automatically be labelled as lacking the mental capacity to make that decision.
For instance, if a young person decides they no longer wish to continue with their education. As a parent or advocate, you may be concerned that this decision is unwise and not in the young person’s best interests. But just because you disagree with their decision doesn’t mean that the young person lacks capacity to make it.
In other words, if the young person above had been found to lack capacity, then a decision would be made by professionals and family members about whether or not continuing their education would be in their best interests. Despite not having capacity, the young person’s wishes and feelings should still be considered and given appropriate weight.
So if the education referred to in the above examples would be given at a residential school where the young person would be monitored 24 hours a day, but their education/care needs could equally be met through residing in a supported living placement and attending a mainstream college setting, then the least restrictive of these two options should be undertaken.
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The Local Authority should always consider whether a young person requires support in expressing their views. If they do, then they should consider providing an advocate (who could be a family member or a professional) to assist in providing the young person’s views. Information about advocacy services should be clearly detailed in the Local Authority’s Local Offer and these services can be provided through a personal budget.
When there is concern about a young person’s mental capacity to make a decision, then a mental capacity assessment will need to be undertaken and this should be undertaken by appropriate staff who have received training in mental capacity, such as a social worker, psychiatrist or other relevant professional.
If there are any disputes the Court of Protection oversees actions taken under the Mental Capacity Act and resolves any disputes that involve mental capacity matters.
It’s important that you firstly try to resolve mental capacity disputes amongst the person’s involved in making the decision through best interests meeting and negotiation. Should this not work, then a matter can be brought before the Court of Protection in order that issues can be examined and decisions made.
The Court of Protection is an inquisitive Court and it requires the people involved in the proceedings to try to resolve the dispute themselves during the proceedings.
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