An Insightful Look At Mental Capacity from our Mental Health Solicitors

Posted on: November 3rd, 2020

We probably don’t realise how much we rely on our mental capacity in our day to day lives. It’s what we use when making all kinds of decisions, from choosing what we want to have for dinner to making the choice to move house. Given how vital it is, it is naturally worrying when we find ourselves or one of our loved ones losing their mental capacity.

Our solicitors have to consider how fit our clients are to make legal decisions, and therefore we make sure assessments are carried out when needed. This will determine whether the client can act for themselves or whether their loved ones need apply for authorisation with the Court of Protection. Read on to understand more about mental capacity, why we may lose it and what to do if we find ourselves affected by it in any way.

What does the term ‘mental capacity’ mean?

In a nutshell, mental capacity is the ability to be able to make your own decisions. It can be applied to all aspects of life. If someone lacks mental capacity, it means they are incapable of carrying out certain actions or making decisions for themselves. As a law firm specialising in mental health, we often come across circumstances where family members or other trusted individuals need to make decisions and sign documents on behalf of clients.

Why would we lose our mental capacity?

There are many reasons why someone’s mental state may deteriorate. Some of the most common reasons include:

  • Mental illnesses, such as dementia
  • Strokes
  • Accidents causing brain injury
  • Severe mental health issues
  • Substance of alcohol misuse
  • Severe learning difficulties

Each case is unique. Some people who lack mental capacity may have this incapability permanently, and sometimes the loss could be temporary.

How are assessments made?

As the Mental Capacity Act 2005 states, each of us are assumed to have mental capacity until a full assessment is carried out and indicated otherwise. An assessment such as this is made in two stages. The first will distinguish whether the functioning of a person’s brain is impaired. The second stage investigates whether or not the impairment or disturbance to the brain will affect the person making an important decision.

In an assessment, a person is deemed unable to make their own decisions when:

  • They are unable to understand the decision and its implications
  • They cannot process or retain the relevant information they need to make the decision
  • They are unable to communicate their decision, whether this be verbally, written or through signs. It is vital to try and find a successful way to communicate before the results of the assessment are finalised

Depending on the situation, the assessment may be made by the carer or doctor of the person affected. There are many scenarios in which the person being assessed is residing in a care home or hospital. However, sometimes it is necessary to have the additional opinion of a GP or social worker.

Where do I start? Do I need to apply for authorisation with the Court of Protection?

If you’ve not before been presented with an issue such as this, it can be difficult to know where you need to step in on behalf of a loved one. As previously stated, each case is different. Sometimes, the affected individual may have made plans for this possibility and created a Lasting Power of Attorney or an Advance Decision, meaning you need not go through the Court of Protection. However, this is not always the case.

If the circumstances are completely unforeseen and no plans have been made, the person hoping to make the decision on behalf of the affected individual will need to apply to the Court of Protection in order to be authorised to make the decision.

Before any official decisions are made and the Court of Protection is made involved, an assessment must be carried out. We understand that the process can be quite lengthy and complex, so please don’t hesitate to get in touch with us if you would like some help or support.

Talk to the experts

If you require any of our legal services or you're not sure where to get started, please contact us at our Redcar High Street office and our solicitors will guide you every step of the way.

Contact Cygnet graphic