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Mental Capacity

When someone loses their mental capacity to make decisions for themselves the Mental Capacity Act governs what should happen to protect them.  Deputies, including Professional Deputies, are often appointed by the Court to make both financial and health care decisions in the best interests of the affected individual to help them carry on with their lives.  Minton Morrill have a specialist team of Court of Protection solicitors with considerable experience helping to manage the affairs of children and adults following high value medical negligence claims.

What is the Mental Capacity Act?

The Mental Capacity Act (MCA) is designed to protect and empower individuals who may lack the mental capacity to make their own decisions about their finances, care and treatment. The MCA applies to all individuals aged 16 and over.

The MCA states that everyone has the right to make their own decisions and allows individuals to express their preference as to their care and treatment, in advance, in case they lose the capacity to make these decisions. The MCA also allows them to appoint a trusted person to make a decision on their behalf should they lack capacity in the future.

In situations where a person is deemed to lack capacity a Deputy can be appointed by the Court of Protection to manage the personal welfare, property or financial affairs of the individual who lacks mental capacity.

At Minton Morrill, we have a dedicated Court of Protection/Deputyship team of experts to manage the affairs of individuals who are deemed to lack capacity under the MCA.  Click here to read about our leading Court of Protection team of experienced solicitors.

To find out more or for a free initial consultation, call one of our Court of Protection/Deputyship experts on 0113 245 8549 or use our contact form found here.

Who is the Mental Capacity Act for?

The MCA is designed for individuals who may suffer from the following conditions:

  • Dementia. This is an increasingly common condition. The risk of developing dementia increases with age. The condition usually occurs in people over the age of 65.  It can result in an ongoing decline of the brain and its function. As dementia affects a person’s mental ability, they may find planning and organising their affairs difficult and may require help from friends or relatives and, in some situations, professional help with their decision making from our specialist lawyers.
  • A severe head or brain injury. This can lead to brain damage that may affect an individual’s ability to make decisions for themselves.
  • A severe learning disability. Some of these disabilities are diagnosed at birth such as Down’s Syndrome or Cerebral Palsy whereas others might not be discovered until later in life.   In either scenario, this individual may find it very difficult to make decisions and may require help with a lot of aspects of daily living.
  • A Mental Health condition. If someone has a mental health problem, they may not be able to manage their day to day affairs or have capacity to make decisions.

The MCA is designed to help people express their preference for care and treatment in case they lack capacity to make these decisions and it allows them to appoint a trusted person to make a decision on their behalf should they lack capacity in the future to do so.

When does someone lack mental capacity?

For an individual to be assessed as without mental capacity, the MCA has a two-stage test:

  1. Does the individual concerned have an impairment of or a disturbance in the functioning of their mind or brain, whether as a result of an injury, medical condition, illness or external factor such as alcohol or drug use?
  2. Does the impairment or disturbance mean that the individual is unable to make a specific decision when they need to? Individuals can lack capacity to make some decisions but have capacity to make others.  Mental capacity can also fluctuate with time and an individual may lack capacity at one point and yet may be able to make the same decision at a later point. The loss of capacity could be partial or temporary. It is possible for a person to lack capacity to make one specific decision but not another.

The MCA states that a person is unable to make a decision if they cannot understand the information relevant to making it and, further, cannot retain information or use it appropriately to weigh up a decision in a proper informed manner.   If someone is unable to do any of these three points and/or cannot actually communicate their decision (by talking, using sign language, or through any other means), the MCA says they will be treated as unable to make the specific decision in question for themselves.

Why might you question a person’s capacity to make a decision?  Examples include:

  • An individual’s unusual and abnormal behaviour or their circumstances raise doubt about whether they have the capacity to make a decision.
  • Concern about an individual’s capacity has been raised by someone else; for example, a family member or a health care worker with knowledge about them.
  • An individual has previously been diagnosed with a condition causing a mental impairment affecting the performance and function of their mind/brain and it has previously been demonstrated that they lacked capacity to make decisions before.

Who can carry out mental capacity assessments?

Anyone caring for or supporting a person who is suspected to lack capacity should be involved in tests to assess this.  The MCA is designed to empower those in health and social care to carry out mental capacity assessments themselves rather than always rely on experts, such as GPs, Psychiatrists or Psychologists; however, in cases involving complex health needs or where very major decisions need to be made, professional help is likely to be sought from an medical expert.

The mental capacity assessment must be made on the balance of probabilities; in other words, is it more likely than not that the individual in question lacks mental capacity?

Court of Protection and Mental Capacity

The Court of Protection is the Court that deals with decisions/actions taken under the MCA. Click here to read our dedicated webpage with information about the Court of Protection.

In certain circumstances, an individual or their family on their behalf may need to apply to the Court to make decisions about their health, welfare, financial affairs or property.

The Court of Protection can make decisions about:

  • Whether steps taken on an individual’s behalf are appropriate if they lack mental capacity to take it for themselves. The Court can decide whether they believe someone has capacity to make a particular decision or whether a decision is in their best interests.
  • Disagreements that cannot be settled in any other way.
  • Health or personal care decisions, where there is no attorney or deputy to make it.
  • Whether a deprivation of liberty safeguard authorisation has been granted lawfully or to settle a dispute about the use of the safeguards against an individual.
  • Situations where a series of decisions rather than a single decision are required.
  • Appointing a Deputy to manage an individual’s financial affairs.

What is a Deputy?

A Deputy is someone the Court of Protection appoints to make decisions for an individual who does not have mental capacity to make these decisions for themselves.

A Deputy usually makes decisions about finances and property on behalf of the individual without mental capacity.  For example, where a large sum of money needs to be managed through investment or a property needs renovation to maximise its value when being sold.

The Court of Protection can decide the terms of the Deputy’s appointment, such as:

  • The length of the appointment.
  • The level of supervision an individual without mental capacity needs from a Deputy.
  • Any fees the individual without mental capacity might need to pay to the Court.
  • Whether the Deputy should be paid for their work and, if so, should this be deducted from the individual without mental capacity’s income or savings.  The Court may sometimes ask that a Deputy pay a security deposit before they spend any money and to keep regular accounts of any money that they spend. If someone without mental capacity has complex finances it is more likely a Professional Deputy such as a solicitor will be appointed.  The individual without capacity will pay for this service.

Mental Capacity Act and Children

Children, anyone under the age of 18, are automatically deemed to lack legal capacity to make decisions by virtue of their age.  If it is likely that a child will be able to make financial decisions on turning 18 then the Court of Protection will not be involved; however, if the child is likely to lack capacity into adulthood and has assets, like money from a compensation claim, the Court of Protection may appoint a Deputy for property and affairs.

In such a scenario, the appointed Deputy would be responsible for managing a child’s finances.  This includes taking and acting on investment advice, setting a budget based on income, dealing with the Court of Protection as well as dealing with state benefits and tax.

Minton Morrill act as Professional Deputies for many children who have obtained compensation, often multi-million pound settlements, through successful medical negligence claims, with the help of our leading medical negligence team of lawyers.  Click here for information about medical negligence claims.  With high value compensation claims involving children, the Court of Protection usually ask for a Professional Deputy (like a solicitor) to be appointed to deal with the complexities of managing large compensation awards. 

Who can be a Deputy?

A Deputy can be a friend or family member for the individual without mental capacity or a Professional with the necessary skills so long as they are 18 years old or older and have mental capacity to act as a Deputy.

Anyone applying to the Court of Protection to act as a Deputy would need to show that they would act in the best interests of the person without mental capacity.  They would need to, for example, carefully consider that individuals values, views and preferences as well as consulting their family, friends and anyone who is important in their life. 

A Deputy will need to show to the Court of Protection that they have the skills and the abilities to carry out the duties of a Deputy and that they will be trustworthy and reliable.

Why we can help?

The Court of Protection team at Minton Morrill Solicitors have extensive experience acting as Professional Deputies (appointed by the Court of Protection) for both children and adults who lack capacity to manage their own financial affairs.  In our experience, and particularly with high value compensation claims, time strapped family members do not want the responsibility of dealing with and managing multi-million pound settlement awards.  The Court of Protection also usually prefers a Professional Deputy with these big sums of money.

With out trusted team of Professional Deputies in place, the burden and responsibility of managing large amounts of money and liaising with the Court of Protection is taken away from the family so that they can concentrate on supporting their family member and continuing with their own lives.  Click here for Case Studies highlighting the type of work our team of Court of Protection specialists do and here for Court of Protection information. 

Health and Welfare decisions

Under the MCA, a trusted individual can also make decisions on behalf of a person without mental capacity relating to their health, welfare and personal care. This can include important decisions on medical treatment, medication and on daily activities such as where that person will live, how they will wash, dress, eat, shop and clean their home.  As part of this, a plan of action will be required so that the person without mental capacity has help with communicating to arrange, for example, community care services and support.   

In the event that an individual loses mental capacity to make these types of health, welfare and personal care decisions, a carer, family member or health care professional can make these decisions on that person’s behalf, without liaising with the Court of Protection, but only if decisions they take is in the best interests of the individual without mental capacity. 

Mental Capacity Act and “best interests”

Deputies, like healthcare professionals, must always act in the best interests of the person without mental capacity.   The MCA has a best interests checklist outlining what needs to be considered when taking a decision on someone else’s behalf.  This checklist includes:

  • Considering all the relevant circumstances, including: the type of mental health problem or physical illness the person without mental capacity suffers from, how long this condition is going to last (temporary or permanent), age, whether that person would normally make a particular decision themselves and who has and is currently caring for that person.
  • Assess whether the affected individual will regain capacity to make decisions in the future and, if so, can any decisions wait until that time.  This may be particularly relevant when there is temporary severe mental distress for a short period of time.
  • Supporting the individual without mental capacity in making decisions on their behalf and giving thought to any wishes, feelings or instructions they made before they lost mental capacity and respect their beliefs and values to help make decisions.
  • Considering the views of the affected individual’s carers, family or people who may have an interest in their welfare and/or anyone else appointed to help them.

There may be other relevant best interests considerations based on specific situations.  Our team of Deputies have significant experience with often sensitive best interests issues and we will work with our clients, the affected individual and, where appropriate, other family members to ensure that all decisions are made in the best interests of the person without capacity.  Our experience often helps us navigate potentially difficult decisions and choices.

Depravation of liberty

Depravation of liberty is where an individual’s liberty is taken away from them, specifically, they are kept in a locked ward or room and cannot leave without permission or very close supervision in order to try and keep them safe. This action will only happen in very specific circumstances and such extreme measures are closely controlled by the MCA rules.  It often involves an individual going into a Care Home or Hospital to receive care or treatment because they do not have capacity to make the needed decision to get help on their own.

Before any Depravation of Liberty decision can be made, the Care Home or Hospital, for example, must get permission from the relevant authority, known as applying for “Authorisation”.  This involves 6 assessments (which can be simultaneous), looking at: age, mental health, mental capacity, best interests, eligibility and a “no refusal” test.

If granted, the length of the Authorisation for Depravation of Liberty depends on the affected individual’s personal circumstances and how likely these are to change.  The maximum time is 12 months following which the Care Home or Hospital can request a further Authorisation which will again be subject to the 6 assessments tests set out above.

There is a right of appeal against Depravation of Liberty to the Court of Protection.  Legal Aid Agency funding may be available to pursue this.  Minton Morrill have further specialist teams of solicitors that regularly advise in relation to these types of Appeals.  Speak to us by completing this contact form or calling 0113 245 8549 for advice. 

If you, or someone you know, needs help and advice about mental capacity and/or Court of Protection Deputyship and would like to speak with our experts please contact us through the contact form or by telephoning to speak to our solicitors on 0113 245 8549.