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What if I'm unable to make decisions?

The Mental Capacity Act 2005 affects people aged 16 or over and provides a framework to protect people who may not be able to make decisions for themselves. A lack of capacity could be because of a severe learning disability, dementia, mental health problems, a brain injury, a stroke or unconsciousness due to an anaesthetic or a sudden accident or injury.

What does the Mental Capacity Act do?

It provides clear guidelines for carers and professionals about who can take decisions on behalf of person who lacks capacity in which situations, and how they should go about this. It introduces a Code of Practice for people such as care workers who support people who have lost the capacity to make their own decisions.

It aims to protect mentally incapacitated adults to ensure that decisions are made in their 'best interests'. The Act states that everyone should be treated as able to make their own decisions until it is shown that they can't. It also aims to enable people to make their own decisions for as long as they are capable of doing so.

How does the Mental Capacity Act work?

It allows people to plan ahead for a time when they may lack capacity by enabling them to appoint a Lasting Power of Attorney (LPA) (formerly Enduring Power of Attorney).This will give vulnerable people greater choice and control over their future and enable them to choose someone they trust to look after their affairs when they become unable to decide for themselves.

LPA's will need to be registered with the Office of the Public Guardian and if granted, they will be able to make decisions about someone's property and affairs (including finances), and/or healthcare treatment.

The Act has also created legal safeguards designed to stop fraud and abuse: -

  • The Court of Protection will be able to make final decisions about whether someone lacks capacity, it can make important decisions on their behalf and it can appoint deputies to make decisions on someone's behalf.
  • The Office of the Public Guardian oversees Lasting Power of Attorneys and Enduring Power of Attorneys, supervises deputies, supports the Court of Protection and gives guidance on the Mental Capacity Act to the general public.
  • A criminal offence of ill treatment or willful neglect of a person who lacks capacity.
  • New procedures and safeguards for involving people in research when they lack the capacity to consent.

What if I don't have anyone to help me make important decisions when I am not able to?

The Mental Capacity Act set up the Independent Mental Capacity Advocate (IMCA) service. The service helps vulnerable people who cannot make some or all important decisions about their lives.

The IMCA service will mean that certain people who lack capacity - this may include people with dementia, Alzheimer's disease, brain injury or a very severe learning disability - will be helped to make difficult decisions such as medical treatment choices or where they live. It is aimed at people who do not have relatives or friends to speak for them.

Where can I find out more information?

The Office of the Public Guardian is the first point of call for enquiries. For advice and information, call their Customer Services Unit on 0845 330 2900.

The Department of Constitutional Affairs have also published a leaflet containing useful information that is available to download below: -

If you would like hard copies of the leaflet then please email or call the Department for Constitutional Affairs on Tel: 020 7210 0038/39.