How do I know if my Loved One has Capacity to make Decisions?

Kayleigh Smith
Author:
Kayleigh Smith
Associate Solicitor, Court of Protection
Date:
07/09/2021

It’s upsetting to think about our loved ones losing their ability to make decisions and you might be finding it hard to accept or be unsure how you can help them.

Losing capacity can happen in many ways and it can happen both gradually and suddenly. Whatever the situation, it’s important that you and your loved one have the right support in place so you know your loved one’s affairs will be taken care of.

If you’d like free initial legal advice from our Court of Protection Solicitors, please get in touch.

Call us on 08002605010 or request a callback and we will help you.

What is Mental Capacity?

If someone has capacity, it means they have the ability to make and communicate their own decisions.

Under the Mental Capacity Act, a person may lack capacity if they can’t understand, remember and use information given to them about a specific decision or communicate their decision.

What can cause a loss of Mental Capacity?

People can lose capacity in different ways and it’s not always permanent.

It can be because of:

  • A condition developed in later life, such as Alzheimer’s or dementia
  • A learning disability such as autism
  • A serious accident that has left them with a brain injury
  • A mental health condition such as depression or schizophrenia
  • Substance or alcohol abuse

Some of the above conditions can be temporary, and it’s not always black and white what decisions individuals can and can’t make. Some people may only struggle to make decisions about certain things, while others are unable to make any at all.

This is why it can be difficult to know whether your loved one has in fact lost capacity.

Capacity can change over time and it’s not always the case that you loved one is unable to make any decision at all. You should still encourage and support them to make their own decisions where you can.

For example, you could try using different methods of communication, or communicating at different times of the day when your loved one may be at their best.

If you’re worried about a loved one’s capacity, you can get them assessed by a medical professional such as their GP for a diagnosis.

Our Court of Protection Solicitors are also happy to talk to you about your individual situation, and offer expert advice and support.

What should I do if my Loved One has lost Capacity?

If you’ve established that your loved one has lost the capacity to make decisions for themselves, you can choose to apply for a Deputyship.

A Deputy is appointed by the Court of Protection to make decisions on behalf of someone who has lacks capacity. Anyone over the age of 18 can apply to be someone’s Deputy, but usually it’s a partner or a close family member. The Court can also choose to appoint a professional Deputy such as a Solicitor.

As a Deputy, you can make important decisions about your loved one’s finances and living situation. Any decision you make must be made in your loved one’s best interests.

The Mental Capacity Act suggests you do this in a number of ways including:

  • Encouraging their participation
  • Not making assumptions based on their age, condition, appearance or behaviour
  • Delaying making the decision if you think they might regain capacity in the future

If you’re worried that your loved one has lost capacity, and you’d like legal advice about applying for a Deputyship or appointing a professional Deputy, get in touch with our specialist Court of Protection Solicitors.

For free legal advice call our Court of Protection Solicitors

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