Making decisions on behalf of adults who lack capacity

The Mental Capacity Act 2005

The Mental Capacity Act 2005 deals with decision making for adults in England and Wales who lack capacity to make their own decisions. A Code of Practice provides detailed guidance on the act.

Section 1 of the act sets out several principles, including:

• a person must be assumed to have capacity unless it is established they do not
• a person should receive support to make their own decisions before they are treated as lacking capacity
• any decision made on behalf of somebody who lacks capacity must be made in their best interests and restrict their rights and freedom of action as little as possible

When does a person lack capacity?

Under section 2 of the act, a person lacks capacity if they are unable to make a decision for themselves, at the time it needs to be taken, because of “an impairment of, or a disturbance in the functioning of, the mind or brain”. A person is “unable to make a decision” if they are unable to:

• understand and retain the information relevant to the decision
• weigh that information as part of the decision making process, or
• communicate the decision

A lack of capacity cannot be established simply by reference to a person’s age or appearance, or any particular condition they may have.

A person’s capacity to make a decision can depend on the type of decision and the time when a decision needs to be made. A person may, for example, have the capacity to make straightforward decisions but lack the capacity to make more complicated decisions. They may also lack the capacity to make a decision at one point in time but have the capacity to make the same decision at a later date.

The person who assesses an individual’s capacity will usually be the person who is directly concerned with them at the time the decision needs to be made – for example, a family member, carer, healthcare professional or lawyer, depending on the circumstances. Where more complex or major decisions are required, a formal assessment from a professional may be necessary (Code of Practice, paras 4.38 to 4.53).

Best interests decisions

If a person is assessed as lacking capacity, decisions relating to their health and welfare can be made in their best interests, in line with the process set out in section 4 of the Mental Capacity Act 2005. Anyone requiring access to money in a person’s bank or building society will, however, need formal legal authority (see sections below on power of attorney and the Court of Protection).

Different people may be required to make decisions on behalf of someone who lacks capacity. The Code of Practice explains (paras 5.8 to 5.12):

• For most day-to-day decisions, the decision-maker will be the carer most directly involved with the person at the time.
• Where the decision involves the provision of medical treatment, the responsible healthcare professional will be the decision maker.
• If a lasting power of attorney has been made, or a deputy has been appointed (see below), they will be the decision maker for decisions within the scope of their authority.
• There are times when a joint decision may be made a number of people – for example, when a care plan is being developed.

It is the decision maker’s responsibility to work out what would be in the best interests of the person who lacks capacity. In doing so, they must, so far as reasonably ascertainable, consider:

• the person’s past and present wishes and feelings
• the beliefs and values that would likely influence the person’s decision if they had capacity, and
• other factors the person would likely consider if they were able to do so

The decision maker must also consider (if practicable and appropriate) the views of:

• anyone named by the person as someone to be consulted
• anyone engaged in caring for the person or interested in their welfare
• an attorney under a lasting power of attorney, and
• any deputy appointed by the court

Court of protection and deputies

The Court of Protection deals with decisions or actions taken under the Mental Capacity Act 2005. Among other things, the court has the power to make a decision, declaration or order on behalf of somebody who lacks capacity.

Where there is a disagreement about a serious decision for somebody who lacks capacity, the Court of Protection can be asked to decide the issue.

Where there is a need for ongoing decision-making powers, the Court of Protection can appoint a deputy to make decisions on the person’s behalf. There are two types of deputies:

• property and financial affairs
• personal welfare (for decisions about medical treatment and how a person is looked after)

Lasting power of attorney

A lasting power of attorney (LPA) allows a person to appoint one or more people (called ‘attorneys’) to make decisions on their behalf. A person must be 18 or over and have mental capacity when they make an LPA.

There are two types of LPA:

• Health and welfare: the attorney can have the power to make decisions about a person’s care when they are not able to do so.
• Property and financial affairs: the attorney can have the power to make decisions about a person’s finances.

Children and young people

Most of the Mental Capacity Act applies to young people aged 16 and 17. Where a young person aged 16 or 17 lacks capacity either the Children Act 1989 or the Mental Capacity Act 2005 may apply, depending on the circumstances. Further information is provided in chapter 12 of the Mental Capacity Act Code of Practice.

The Mental Capacity Act does not generally apply to children under the age of 16. Information on decision making for children is provided in the Library briefing on parental responsibility in England and Wales.

Further information

The mental health charity Mind provides detailed information on the Mental Capacity Act 2005 on its website. Mind also operates a legal line that provides legal information and general advice on mental capacity.