Mental capacity and power of attorney

Mental capacity is your ability to make decisions which may affect you (eg, about health, personal welfare or finances). You may be born without mental capacity or it may be something you lose later in life (eg, through brain injury, stroke, dementia or substance abuse).

Under the Mental Capacity Act 2005 (MCA 2005), you would be deemed to have lost mental capacity if you cannot:

  • understand the information relevant to the decision;
  • retain that information;
  • use or weigh that information as part of the process of making the decision; or
  • communicate your decision (whether by talking, using sign language or any other means).

Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA 2005) outlines what happens if you lack the requisite mental capacity to make decisions in your life regarding your personal welfare and financial matters.

Two major changes introduced by the Mental Capacity Act are:

  • creation and powers of a lasting power of attorney (LPA);
  • clarification of the process where there is no LPA.

Lasting power of attorney

Under MCA 2005, if you have mental capacity, you can choose to appoint someone you trust to make decisions for you should you lose mental capacity later on. There are two types of attorney:

  • a health & welfare LPA – which gives your attorneys the power to make decisions for you about your day-to-day affairs (eg, your diet, wardrobe, personal hygiene, medical care, where you should live, or whether to continue life-sustaining treatment);
  • a property and financial affairs LPA – which gives your attorneys the power to make decisions for you about your finances, business affairs or property matters.

The functionality test

The functionality test is a test which has been brought in by MCA 2005 to establish whether an individual has capacity to make a particular decision at a particular time. The two-stage test involves asking:

  • if there is an impairment of, or disturbance in the functioning of your mind or brain? If so:
  • is the impairment or disturbance sufficient that you lack the capacity to make a particular decision?

The test will be specific to each case and if your are held not to have sufficient capacity for one particular decision this does not necessarily mean that you will not have the required capacity for a different decision. The law also makes it clear that assumptions made about your lack of capacity cannot be based on your age, appearance or condition.

Your family or carers will usually be responsible for deciding if you have mental capacity in everyday cases. However, for more complex decisions, such as where consent is needed for surgery, a doctor or healthcare professional will decide whether or not you have capacity to consent.

Registration requirement

A lasting power of attorney must be registered with the Court of Protection before it becomes valid.

When a lasting power of attorney is created, a third party will need to witness the creation to establish whether the person who created it had the requisite capacity to create the power of attorney and that they were not under any undue influence or duress.

Where there is no power of attorney

An independent mental capacity advocate will be appointed when you have no friends or family to support you in making an important decision regarding serious issues such as surgery or where you should live.

The independent mental capacity advocate role is try to assess your wishes, feelings, values and beliefs and then pass these on to the final decision-maker. In certain instances an independent mental capacity advocate can challenge the decision-maker if they believe that the decision does not adequate represent your wishes.

Article written by...
Lucy Trevelyan LLB
Lucy Trevelyan LLB

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Lucy graduated in law from the University of Greenwich, and is also an NCTJ trained journalist. A legal writer and editor with over 20 years' experience writing about the law.