Making decisions about your health, welfare and finance – who decides when you cannot?

Do you have an illness, injury or disability that may cause you difficulties in making decisions? Do you want to plan ahead in case you are unable to make important decisions for yourself in the future?

Every day we make decisions about lots of things in our lives. The ability to make decisions is called mental capacity. Some people may have difficulties making decisions at different stages of their lives and others might always have difficulties in making decisions.

This could be because they have:

• a learning disability
• dementia
• a mental health problem
• a brain injury or a stroke.

How the Mental Capacity Act affects you

The Mental Capacity Act affects people aged 16 or over. If you are unable to make some decisions, the act explains:

• you should have as much help as possible to make your own decisions
• how an assessment of capacity is made and to assess whether you are able to make a particular decision at a particular time
• if you do not have the capacity to make a very complicated decision, this does not mean that you are unable to make more straightforward decisions
• if someone has to make a decision on your behalf, you must still be involved in this as much as possible
• anyone making a decision on your behalf must do so in your best interest
• there is a new safeguard called the Independent Mental Capacity Advocate (IMCA) to represent you if you lack capacity to make certain important decisions and there is no one else who can be consulted.

If you want to plan ahead for the future, the Mental Capacity Act:

• will enable you to make an ‘advance decision to refuse treatment’ if there is a particular medical treatment you would not wish to receive at a time in the future when you may lack capacity to refuse it
• allow you to make a lasting power of attorney (LPA) enabling you to appoint someone to make decisions about your finance and property or your health care and welfare should you ever lack the capacity to make these decisions yourself.

If you are a family or other unpaid carer, the Mental Capacity Act:

• will help you understand how and when you can act on behalf of someone who lacks capacity to make decisions – and the safeguards and limitations if you are doing this
• says that you should be consulted by professionals when, for example, a doctor makes a decision about treatment for a family member who lacks capacity.

The Mental Capacity Act creates important safeguards

• A new criminal offence of ill treatment or wilful neglect of a person who lacks capacity.
• A Court of Protection that will have the power to make declarations about whether someone lacks capacity, make orders or appoint deputies to act and make decisions on behalf of someone who lacks capacity.
• An Office of the Public Guardian (OPG) which has duties to include registering LPAs and supervision of court appointed deputies.

Useful websites

For more details please see the websites below:

LPAs and Court of Protection

www.justice.gov.uk/about/opg

Mental Capacity Act and IMCA service

www.justice.gov.uk/protecting-the-vulnerable/mental-capacity-act

Advance decision

www.nhs.uk/Planners/end-of-life-care/Pages/advance-decision-to-refuse-treatment.aspx