This Mental Health Week I thought I would tell you about the Mental Capacity Act 2005 which came into force as I began practising as a lawyer.  One of the things I really like about it is that it allows for shades of grey when it comes to having mental capacity; not the binary, you have the capacity, or you are a vegetable.  Someone with a brain impairment may have good days and bad days, have they had their medication, can you use pictures to help them make a decision.

You will be very relieved to know that the law presumes you have mental capacity unless you demonstrable do not. Just because you have a diagnosis of e.g. Alzheimer’s does not mean you cannot make a decision.   Having capacity means being able to take on board the relevant information for making the decision, weighing it up and coming to a conclusion you can communicate somehow.  The relevant information will depend on the decision and the gravity of it e.g. deciding what to have for lunch today will probably not need a great deal of capacity unless you have major allergies. Deciding where to live or trade your stock portfolio will take more.

You have to be helped to make as many of your own decisions as you can – have you had your medication? Can pictures be used or a specialist advisor?  Can the decision be delayed until you are better if the impairment is temporary?  E.g. if you are under general anaesthetic for an operation there is probably no urgency to sell your house.

Just because you make an unwise decision does not mean you lack capacity.  I always tell clients about the red velvet high heeled Ferragamo shoes I bought in Selfridge’s sale.  I was never going to wear those shoes.  I wanted to believe I had the lifestyle in which I would.  An unwise decision (later sold on eBay after sitting in my closet making me feel guilty), did not mean I could insist they take them back as I lost capacity.

Any decision made on your behalf if you lack capacity has to be made in your best interests.  This involves considering your past and present wishes and beliefs and those of people involved in your care.  E.g. I know my mother does not want to be resuscitated if there is no reasonable chance of recovery and that is how I will proceed as her attorney if heaven forfends it becomes an issue.

The fifth principle of the Mental Capacity Act is that any decision made has to be in the least restrictive way possible.  E.g. my friend’s mother has dementia but is very fit and likes to go walking in the very pretty town in which she lives but sometimes gets lost.  They could put a big bolt on the door or they can put a tracker on her so they know where she is and can find her if she gets lost, the least restrictive option.

What proactive steps can you take in the event you were to lose capacity?  MAKE A LASTING POWER OF ATTORNEY, known as LPAs. 

There are two types of LPAs one covering property and finance and the other health and welfare.  You can pick attorney(s) and replacement attorneys who can make decisions on your behalf when you do not have the capacity to do so yourself e.g. because of dementia or even you are under general anaesthetic and the doctors need a decision made as to your treatment.  Personally, I think the health and welfare ones are very important.


If you would like to find out more about Lasting Powers of Attorney please do not hesitate to contact our Private Client Solicitors – no obligation. Remember, the only stupid question is the unasked one!