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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A lasting power of attorney is a legal document that lets you appoint someone to make decisions for you.
You can use a lasting power of attorney to plan for when you no longer have capacity to make your own decisions, and to make sure that these decisions are handled by someone you trust.
This includes decisions about your:
The Mental Capacity Act allows you to appoint someone called an attorney under a lasting power of attorney. This attorney does not have to be a lawyer or someone with specialist knowledge. So you could name someone like your partner, a family member, a friend or a professional.
This attorney has the legal power to:
A healthcare attorney can only make decisions for you when you’re unable to make these decisions for yourself.
They can also decide about:
The exact decisions they can take for you depends on what you put in your lasting power of attorney.
You can give your healthcare attorney power to refuse certain treatments for you.
For example:
But your healthcare attorney will not be able to refuse treatment for you if:
This list is not complete, but some examples are:
This type of lasting power can be used as soon as it’s registered, with your permission, if you have capacity to give it.
The disadvantage is that you are giving someone a lot of your personal information, and giving them power to make decisions about your life. That is why it is important to choose someone you can trust to be your attorney.
An attorney under a financial lasting power of attorney would have access to a lot of information about your bank account and your finances. But it might be possible to get your money back if the court decides they have been dishonest or spent your money unwisely.
An attorney under a healthcare and personal care lasting power of attorney has wide-ranging authority to make decisions for you.
It is more usual for people to have an attorney to manage their finances than to have a healthcare and personal care attorney. You need to think about whether having a healthcare and personal care attorney is the best way of planning for your long term future.
Some questions to think about might be:
You cannot give an attorney the power to:
An attorney under a finance and property lasting power of attorney can't make decisions about your future healthcare or any personal matters – the only exception is if you have named the same person to be your finance and property attorney, and your healthcare and welfare attorney, on separate forms.
An attorney under a healthcare and welfare lasting power of attorney can't:
To make a lasting power of attorney, you (the donor of the power) need to:
You need to decide whether you want the attorney to make decisions that are:
You can name the same person as attorney in both cases, but you will need to fill in two forms, one for the financial and property lasting power of attorney, and another for the healthcare and personal one.
There is a form provided by the Mental Capacity Act which you must use. You can get the from the Office of the Public Guardian, or by seeing a solicitor and asking them to help you fill out the form (the Law Society has details of solicitors you can get in touch with).
When you’re deciding who to name as your attorney:
You can name more than one person to act together as attorneys, but you may need to get legal advice to make sure it is valid.
When you get the form you will need to do the following:
If you are making a financial lasting power of attorney, you can say that you want the attorney to:
An attorney under a financial lasting power of attorney cannot make any decisions about healthcare or personal matters on your behalf.
If your attorney acts dishonestly or doesn’t follow your instructions, you or someone who looks after your interests can:
The Court of Protection can remove the powers of an attorney for:
The Court of Protection can also:
However, the Court cannot change any of the instructions you put in your lasting power attorney.
An 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.
See our full list of legal terms.An advance statement is a written document that sets out your preferences (apart from refusals of treatment). It is not legally binding. You can ask a professional to follow this document if you ever lose capacity to make these decisions yourself.
See our pages on the Mental Capacity Act for more information.
See our full list of legal terms.An appointee is someone appointed by the Department for Work and Pensions (DWP) to help manage your benefits for you if you lose capacity to manage them yourself.
See our full list of legal terms.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.
See our full list of legal terms.A 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.
See our full list of legal terms.Health 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.
See our full list of legal terms.An 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.
See our full list of legal terms.This is a document, signed by a certificate provider, confirming that you understand why you are making a lasting power of attorney, and that no fraud or undue pressure has been used on you to force you to make it. You need to include a certificate of capacity with your forms when naming someone as your attorney.
See our full list of legal terms.The 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.
See our full list of legal terms.A 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.
See our full list of legal terms.This is where someone called a 'guardian' is appointed instead of being sectioned and kept in hospital. Your guardian could be a person or a local authority.
You can only be placed under guardianship if it's necessary for your welfare or to protect other people. Your guardian has the power to make certain decisions about you and to make conditions that you will be asked to keep to, such as where you live.
Guardianship lasts for up to six months and can be renewed: initially for a further six months, and then for a year at a time. You can appeal to the Mental Health Tribunal once in each of these periods.
See our full list of legal terms.A 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.
See our full list of legal terms.This is a law that applies to England and Wales which allows people to be detained in hospital (sectioned) if they have a mental health disorder and need treatment. You can only be kept in hospital if certain conditions are met.
See our pages on the Mental Health Act for more information.
See our full list of legal terms.This is the mental health professional in charge of your care and treatment while you are sectioned under the Mental Health Act.
Certain decisions, such as applying for someone who is sectioned to go onto a community treatment order (CTO), can only be taken by the responsible clinician.
All responsible clinicians must be approved clinicians. They do not have to be a doctor, but in practice many of them are.
See our full list of legal terms.Being 'sectioned' means that you are kept in hospital under the Mental Health Act. There are different types of sections, each with different rules to keep you in hospital. The length of time that you can be kept in hospital depends on which section you are detained under.
See our pages on sectioning for more information.
See our full list 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.
See our full list of legal terms.This information was published in November 2017.
This page is currently under review. All content was accurate when published.
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