A general guide on how the Mental Capacity Act affects you and how you can plan ahead for when you no longer have the mental capacity to make decisions for yourself.
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The Court of Protection is a court that deals with decisions or actions taken under the Mental Capacity Act.
You or someone helping you would need to apply to the Court if someone needs permission from the Court to make decisions about your health, welfare, financial affairs or property.
The Court can make decisions about:
The Court must always act in your best interests when it makes these decisions for you.
You normally have to pay a fee to apply to the Court. In certain circumstances, depending on how much money you have, you can be excused from paying fees and get a fee exemption. You can find the forms to apply for help with fees on the gov.uk website.
Legal aid may be available for you to pay for a solicitor to act for you in the Court of Protection.
Anyone can apply:
If someone brings a legal action to the Court of Protection on your behalf because you lack capacity, you should still be included in this. You will need to get a solicitor, but if you do not have the capacity for this, the court will consider how you should be involved and may appoint a litigation friend or representative for you.
You may be able to challenge a decision from the Court of Protection by applying to the Court of Appeal – however, you may need permission for this.
If you want to challenge a decision, you should get legal advice from a solicitor specialising in Court of Protection matters to help you work out:
The Law Society provides details of solicitors you can get in touch with.
You should not go ahead with a legal challenge if your solicitor does not think you are very likely to win, because it can be stressful and expensive. You should ask for advice about legal aid, as you may be entitled to it if your challenge is about you being deprived of your liberty.
The Court of Protection makes decisions and appoints deputies to act on your behalf if you are unable to make decisions about your personal health, finance or welfare.
See our pages on the Mental Capacity Act for more information.
Visit our full listing of Legal TermsA litigation friend is someone who can take your place in legal proceedings, if you lack capacity to take part yourself. For example, the litigation friend could instruct solicitors on behalf of you, or speak to the judge directly on your behalf.
A litigation friend could be a family member, a friend, or the Official Solicitor.
Visit our full listing of Legal Terms'Capacity' means the ability to understand information and make decisions about your life. Sometimes it can also mean the ability to communicate decisions about your life.
For example, if you do not understand the information and are unable to make a decision about your treatment, you are said to 'lack capacity' to make decisions about your treatment.
See our pages on the Mental Capacity Act for more information.
Visit our full listing of Legal TermsA deprivation of liberty is where your liberty is taken away from you - that is, you are not free to leave and you are under continuous supervision and control. The Mental Capacity Act says that the law allows this only in very specific situations.
This may happen to you if you need to go into a care home or hospital to get care or treatment, but you don't have the capacity to make decisions about this yourself.
Visit our full listing of Legal TermsHealth professionals must act in your best interests before taking certain steps that affect your care and treatment.
The Mental Capacity Act has a best interests checklist, which outlines what health professionals need to consider before taking an action or decision for you while you lack capacity.
See our pages on the Mental Capacity Act for more information.
Visit our full listing of Legal TermsIf you are in a hospital or care home, your liberty can normally only be taken away if health professionals use the procedures called the Deprivation of Liberty Safeguards. This protects you from having your liberty taken away without good reason.
See our pages on the Mental Capacity Act for more information.
Visit our full listing of Legal TermsAn advance decision is a statement of instructions about what medical treatment you want to refuse in case you lose the capacity to make these decisions in the future. It is legally binding.
See our pages on the Mental Capacity Act for more information.
Visit our full listing of Legal TermsAn attorney is a person over the age of 18 whom you have appointed to make decisions on your behalf about your welfare and/or your property and financial affairs. You need an attorney if you are unable to make such decisions yourself. If you do not have the capacity to appoint an attorney, the Court of Protection will appoint a deputy to perform this role.
See our pages on the Mental Capacity Act for more information.
Visit our full listing of Legal TermsA lasting power of attorney is a legal document that lets you appoint someone, called an attorney, to make decisions for you.
See our pages on the Mental Capacity Act for more information.
Visit our full listing of Legal TermsA deputy is a person the Court of Protection appoints to make decisions for you once you have lost capacity to make them yourself. A deputy usually makes decisions about finances and property. The court can appoint a deputy to take healthcare and personal care decisions, though this is relatively rare.
Visit our full listing of Legal TermsAn IMCA is a specially trained advocate who can help you if you do not have the capacity to make particular decisions. NHS bodies or local authorities must take an IMCA's views into account when making decisions that affect you if you have lost capacity. They are normally appointed by the local authority in England, and by local health boards or other NHS bodies in Wales. They must be independent people of integrity and good character with appropriate experience and training.
See our page on IMCAs for more information.
Visit our full listing of Legal TermsThe Mental Capacity Act 2005 is the law that tells you what you can do to plan ahead in case you can't make decisions for yourself, how you can ask someone else to make decisions for you and who can make decisions for you if you haven't planned ahead.
See our pages on the Mental Capacity Act for more information.
Visit our full listing of Legal TermsThis information was published in November 2017.
This page is currently under review. All content was accurate when published.
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