This resource is intended to be important useful information that sits alongside Wills, Lasting Powers of Attorney and Advanced Decisions. If you have additional questions please do not hesitate to contact us or to refer to our FAQs page.

Mental capacity is governed generally by the Mental Capacity Act 2005. A person can be said to have mental capacity if they can:

• Understand information

• Retain the information long enough to make a decision

• Make a decision

• Communicate their decision

A person can lose mental capacity for a number of reasons, including suffering a CVA (stroke) or through illness such Alzheimer’s disease. A person could lose capacity temporarily and regain it later, such as after taking medication or suffering exhaustion.

It is important to note that just because a person makes a bad decisions, this does not mean that they do not have mental capacity.

The possibility of losing mental capacity, particularly in later life, is the most important reason that we at Castle Family Legal recommend putting Lasting Powers of Attorney (LPAs) in place in advance. Once a person loses mental capacity permanently, they cannot then create legal documents as they cannot be said to understand or retain the information as required.

If a person does not have LPAs (and if required, an Advanced Decision) in place, and they then lose mental capacity, it can be extremely difficult for their loved ones to deal with their affairs for them, as some companies require evidence of lack of capacity, such as doctors’ letters.

Where there are no LPAs in place, to obtain official assistance in dealing with a person’s affairs, you could make an application to the Court of Protection, and in some cases the, Court will make decisions on behalf of the person who has lost mental capacity. Another option open to the Court is to appoint an appropriate person, such as the person’s next of kin, to act on behalf of their relative who has lost mental capacity – i.e. issue a Deputyship Order. This will then allow the applicant, usually a relative, to make decisions on behalf of their relative.

Something that is important to remember once an Attorney or Deputy is appointed to make decisions on behalf of a loved one, is that the decisions should, as far as possible:

• Respect their loved one’s personal and (if applicable), religious beliefs

• Involve the person in their own decisions as much as they can

• Always be made in the best interests of their loved one

• Restrict the person as little as possible

• Take into account that a person’s level of mental capacity can change from time to time – they may have “good days and bad days”

The application process to the Court can be long and complicated, but we will be happy to advise you regarding the correct paperwork and if required, complete this for you. Our prices are always very competitive so do please do not hesitate to call us or send us a message, and we’ll arrange a suitable time to speak to you properly.

If you think that the above situation may apply to you are a loved one, please get in touch and we can have a chat about your circumstances.