Mental capacity means you have ability to make your own decisions. If you lose mental capacity the Mental Capacity Act 2005 protects you and your rights. You may lose mental capacity because of your mental illness. This section explains mental capacity and how the Act works. This information is for adults affected by mental illness in England. It’s also for their loved ones and carers and anyone interested in this subject.
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Mental capacity means you can make your own decisions by being able to:
The Mental Capacity Act (MCA) is a law that provides a legal framework for acting and making decisions on behalf of adults who lack capacity.
The Act will cover you if you are:
The MCA is there to do the following.
The MCA is based on 5 rules called ‘key principles’. The key principles are below.
What is the Court of Protection (CoP)
The Court of Protection (CoP) can protect you if you lack capacity. It can:
What is the Office of the Public Guardian (OPG)?
The Office of the Public Guardian (OPG) have different jobs including:
The Mental Capacity Act (MCA) has a test to see if you have the capacity to make a decision when you need to.
Anyone who thinks that you don’t have capacity should be able to prove this. They need to be able to show that you don’t have capacity to make a certain decision when the decision needs to be made. For example, if a professional believes that you lack mental capacity to make a decision about your treatment or care, they must do this test with you.
Generally, a capacity assessment should be related to a specific decision that you are making. This is because you might have capacity to make one decision but lack capacity to make another. For example, you might be able to decide what treatment you want but not be able make one about a financial matter.
The test has 2 stages.
Stage 2 will only apply if you have been given enough support to try and make the decision for yourself. But you’re still unable to.
An illness or injury that affects how my brain works could be things like:
You will be assessed on the following 4 points to see if you can:
Health professionals should only assess your mental capacity using this test. They can’t base their decision on your age, appearance or diagnosis alone.
You may lose mental capacity. It can be because of the things described in the section above called ‘What is an illness or injury that affects the way my brain works?’
Losing capacity may be temporary. For example, may live with a mental illness which sometimes gets worse. This may affect your ability to make decisions at certain times. This is called ‘fluctuating capacity’.
For example, if you live with bipolar disorder you may lack the capacity to make financial decisions if you have an episode of mania. Even if you can understand and recall information and communicate your decision, you may not be able to understand what will happen when you make that decision.
John lives with schizophrenia. He believes that his doctors want to harm him. John has a large blood clot that needs to be removed immediately. Without an operation, he may die. John is given information about his operation and what could happen without treatment. John is also given information about the treatment they want to give him and what to expect. He decides not to have the treatment. John can understand the information, remember the information and tell his healthcare team his decision. But John believes that his risk of dying is higher if he has the operation because he believes that the doctors are trying to harm him. This belief is not true. So, professionals decide John isn’t mentally capable of weighing up risk. They do this after following the capacity test as laid out in the Mental Capacity Act. John is assessed as lacking mental capacity to make this decision to refuse treatment. A decision is made in his best interest to have the operation. The operation is a success and John recovers well.
If your carer or healthcare professional think you lack the capacity to make a certain decision, they will assess your capacity. They have to check if you can make the decision for yourself with their support.
The person who will assess your capacity depends on the type of decision you need to make. See further down this page for more information.
Anyone who assesses your mental capacity should have the skills needed to communicate with you. A professional can help the assessor if they need support.
If you are worried that you might lose mental capacity in the future, there are things that you can do.
A Lasting Power of Attorney (LPA) is a legal document. You can sign a LPA to give one or more people authority over your affairs.
The law that deals with LPAs is The Mental Capacity Act 2005.
If you create a LPA:
You must have mental capacity to make a LPA. But it will continue to be valid even if they lose mental capacity later.
After LPA’s are signed, they need to be registered with the Office of the Public Guardian (OPG).
Who can be an attorney?
You should trust the person you are making your attorney. The attorney will usually have wide ranging powers.
An attorney under a LPA must:
What types of Lasting Power of Attorney are there?
There are two types of LPA:
What powers does an attorney have under a LPA for financial decisions?
Your attorney will usually have wide ranging powers under a LPA for financial decisions.
Your attorney’s powers will usually include, but not be limited to, things like:
You can restrict what powers your attorney has by clearly stating this in the LPA. If you want to do this it’s best to get legal advice first.
Attorneys have legal obligations they must meet under The Mental Capacity Act, such as the duty to act in your best interests. You can read more about being an attorney here:
www.gov.uk/lasting-power-attorney-duties/property-financial-affairs;
What powers does an attorney have under a LPA for health and welfare?
Health and welfare decisions can include:
Your attorney will only be able to make a decision for you if you lose mental capacity.
If you want to know more about LPAs for health and welfare you can read more here:
www.gov.uk/lasting-power-attorney-duties/health-welfare.
Should I see a solicitor?
You can make a Lasting Power of Attorney without seeing a solicitor. But you should consider getting legal advice, for the following reasons.
You can find more information about ‘Legal advice – how to get help from a solicitor’ by clicking here.
How do I make a Lasting Power of Attorney?
To make a LPA the following people must sign the LPA form.
The LPA forms and a guide to making an LPA can be found on the Gov.uk website:
www.justice.gov.uk/forms/opg/lasting-power-of-attorney
LPAs must be registered with The Office of the Public Guardian (OPG) after they are signed.
Your attorney can’t act under a LPA until it is properly registered with the OPG.
It takes between 8 and 10 weeks to register a LPA if there are no mistakes in the application.
It costs £82 to register a LPA. But you can get a reduction if:
If you want to know more about a reduction in fees you can read the LPA120 form or contact the OPG. You can find their details in the ‘Useful Contacts’ section below.
If you have any questions about making a LPA you can:
How do I end a Lasting Power of Attorney?
You can end a LPA any time you want to, as long as you have the mental capacity to do this. You can read more about ending a LPA here:
www.gov.uk/power-of-attorney/end; or you can contact the OPG.
If you end a LPA you should tell any organisations that your attorney has dealt with or might deal with. Like your bank or the DWP.
A LPA ends automatically if you die.
What is an Enduring Power of Attorney?
LPAs have replaced Enduring Powers of Attorney (EPAs).
You can no longer make an EPA. But EPAs properly made before 1st October 2007 are still valid. You can read more about EPAs here:
www.gov.uk/enduring-power-attorney-duties;
You can contact the Office of the Public Guardian about EPAs if you want further information. Their details are in the ‘Useful contacts’ section at the bottom of this page.
You can make an advance statement if you have mental capacity at the time. An advance statement is a general preference about your treatment and care. It is free to do.
It isn’t legally binding, but medical professionals should still make a practical effort to follow your wishes.
An advance decision is legally binding. You can use it to legally refuse specific medical treatment when you lack the mental capacity to decide for yourself. But Health professionals don’t legally have to follow an advance decision if you are in hospital under the Mental Health Act.
An advanced decision can’t be used for anything else. It is free to do.
You can find out more about ‘Planning your care. Advance statements and advance decisions’ by clicking here.
Anyone who makes a decision for you must follow the 5 key principles of the Mental Capacity Act. You can read about these in first section above.
They must also follow the Mental Capacity Act Code of Practice and only make decisions that are in your best interests.
Most decisions can be made for you. Common decisions made are:
But there are some decisions or actions that can never be decided for you. These include:
Different people may need to make decisions for you at different times.
There should be more than one person involved with certain decisions. Your main decision maker is most likely to be the following people.
Your decision maker has a duty to consult with other people before a decision is made. These people are:
They will make a ‘best interest’ decision for you.
Your might lack capacity to make financial or welfare decisions. But you might not have created a Lasting Power of Attorney.
Someone can apply to the Court of Protection to become your deputy. This would give them the power to manage your financial affairs or to make a welfare decision.
If the Court of Protection agree to appoint a deputy, they will issue a court order. The court order says what powers the deputy has.
The law that deals with deputy orders is The Mental Capacity Act 2005.
There are 2 types of deputy order:
The court only normally issues personal welfare deputy orders in extreme circumstances. If you want to know more about them you can contact the Office of the Public Guardian (OPG). Their details are in the ‘Useful contacts’ section at the bottom of this page.
You can read more about deputy orders here: www.gov.uk/become-deputy
Who can be a deputy?
A deputy must be:
There is no automatic right to become a deputy. The court will decide if the person applying to become a deputy is suitable.
A deputy is normally a close relative or friend of yours. But if no relative or friend is willing or able to act the court might appoint a professional person such as:
When making decisions, deputies must also follow the guidance within the Mental Capacity Act 2005 Code of Practice. You can find this here:
www.gov.uk/government/collections/mental-capacity-act-making-decisions#mental-capacity-act-code-of-practice
What powers does a deputy have?
The court order will say in a court order what powers your deputy has. The court can give your deputy:
When someone applies to become a deputy, they can tell the court what powers they want. But it is up to the court to decide what powers they grant to the deputy.
How does someone become a deputy?
To apply to your deputy a person must complete:
These forms can be found on the Gov.uk website:
www.gov.uk/become-deputy/apply-deputy
The Court of Protection will review the application and make a decision. Their decision partly depends on whether the application was completed correctly and whether anyone objected to the person becoming your deputy.
There is a useful guide to making an application to the Court of Protection called COP42. This can be found on the Government Court Services website:
www.formfinder.hmctsformfinder.justice.gov.uk/cop42-eng.pdf;
If the person who wants to be your deputy needs to take urgent action they should contact the Office of the Public Guardian. Their contact details are in the ‘Useful contacts’ section at the bottom of this page.
You can find out more about urgent applications on the Gov.uk website:
www.gov.uk/emergency-court-of-protection;
Do you have to pay to become a deputy?
Your deputy must pay:
Your deputy may be able to claim a refund for fees if they are on a low income or on certain benefits.
You can find out more about fees here: www.gov.uk/become-deputy/fees.
When does a deputy order come to an end?
You might regain the capacity to deal with your affairs again. If you do, a deputy must inform the Court of Protection. The Court might decide to end the deputy order.
A deputy order ends automatically if you die.
Your best interests are individual to you. They are based on different things. To decide what your ‘best interests’ are the person making the decision needs to think about:
The decision shouldn’t be based only on your appearance, age, mental health diagnosis or your behaviour.
The decision maker must allow and encourage you to be involved with the decision that affects you.
You must be treated as if you have capacity unless there’s evidence that you don’t.
Your capacity might be assessed, and it might be decided that you lack capacity to make a particular decision. You might disagree with this.
To try and solve this disagreement you could try the following.
Talk to your assessor
Speak to the person who has decided that you lack mental capacity to make a decision. Ask them to explain why they think you lack capacity. They must give you evidence to show how they have made their decision in line with the Mental Capacity Act. You could ask for a meeting.
Ask for a second opinion
Ask for a second opinion from an independent professional or someone else who is an expert in assessing capacity.
Use a mediation service
A mediator helps people to come to an agreement that is acceptable to everyone involved. They are helpful when people aren’t communicating well or don’t understand each other’s point of view.
Mediation can help solve a problem at an early stage. A mediator is independent from the situation.
The Ministry of Justice provide an online directory of mediators. The service is provided on a fixed-fee basis. You can find the list at:
www.civilmediation.org/for-the-public/about-mediation/
Apply to the Court of Protection
The Court of Protection can decide if you have the capacity to make a decision. They also have other powers such as deciding if an advance decision is valid.
You can find their contact details in the Useful contacts section at the bottom of this page.
You can get help from your family or friends to help you do this. Or you may be able to get help from an independent mental capacity advocate.
Independent mental capacity advocates (IMCAs) support people who have capacity issues to make or be involved in important decisions. They will:
An IMCA will only help you if:
You can use NHS complaints advocacy if you are making a complaint about an NHS service. They are free to use and independent from the NHS.
You can find out more about:
Often more than one person is involved with decisions that affect someone who lacks mental capacity. This means that disagreements can happen.
See the previous section for information about how to challenge a decision.
You should only be restrained if you need to be stopped from harming yourself. The amount or type of restraint used, and time that it is used for, needs to appropriate to the level of risk.
Restrained means that someone is:
DoLS can sometimes be used if you are in a hospital or care home and lack mental capacity. Deprivation of liberty’ means loss of freedom.
The care home or hospital must get permission from a ‘supervisory body’ before they can lawfully deprive you of your liberty. The supervisory body will usually be a primary care trust or a local authority.
DoLS can only be used when:
There are safeguards in place to make sure:
DoLS can’t be used if you are detained in hospital under the Mental Health Act.
You can learn more about DoLS by following this link: www.scie.org.uk/mca/dols/at-a-glance.
Are DoLs changing and what are Liberty Protection Safeguards (LPSs)?
The Mental Capacity (Amendment) Act 2019 says that the Liberty Protection Safeguards (LPSs) will replace the Deprivation of Liberty Safeguards (DoLS) in the future. The government have yet to provide a date when this will happen. We will update this factsheet when LPSs replace DoLs. For further information on the key changes under LPSs, please see the Government website link here: www.gov.uk/government/publications/liberty-protection-safeguards-factsheets/liberty-protection-safeguards-what-they-are
The MCA has made it a criminal offence to harm or neglect someone who lacks capacity. If someone gets convicted of this offence, they could get a fine or go to prison.
The Mental Capacity Act (MCA) protects carers and healthcare professionals. If the person you care for is assessed as lacking mental capacity, you may be asked to make a best interest decision for them.
You aren’t legally responsible for the outcome of that decision as long as it was made in the person’s best interest.
The MHA and the MCA are different laws.
The MHA is usually used to detain people who have a mental disorder in hospital for assessment and treatment.
Detention in hospital is used as a last resort when someone is a serious risk to themselves or others because of their mental disorder.
Under the MHA you can be forced to have treatment whether you agree to it or not. So even if you have mental capacity, you can still be given most treatment for your mental disorder against your will.
If you are detained under the MHA it doesn’t mean that you automatically lack mental capacity to make decisions.
You can find more information about the ‘Mental Health Act’ by clicking here.
Office of the Public Guardian (OPG)
The Office of the Public Guardian (OPG) protects people in England and Wales who may not have the mental capacity to make certain decisions for themselves, such as about their health and finance.
Telephone: 0300 456 0300. Lines are open Monday, Tuesday, Thursday, and Friday 9am-5pm, and Wednesday 10am-5pm.
Address: PO Box 16185, Birmingham, B2 2WH
Email: customerservices@publicguardian.gsi.gov.uk
Website: www.gov.uk/government/organisations/office-of-the-public-guardian
Court of Protection
Make decisions on financial or welfare matters for people who lack mental capacity.
Telephone: 0300 456 4600
Address: PO Box 70185, First Avenue House, 42-49 High Holborn, London, WC1A 9JA
Email: courtofprotectionenquiries@hmcts.gsi.gov.uk
Website: www.gov.uk/courts-tribunals/court-of-protection
The British Institute of Human Rights
Their guide shows how the rights and duties in the Human Rights Act can help strengthen support for people with mental health problems, including those that lack mental capacity.
