The Mental Capacity Act

A lasting power of attorney is a legal document that lets you appoint one or more people (known as attorneys) to make certain decisions on your behalf, at a time where you may be unable to make those decisions.

You must be 18 or over and have mental capacity (the ability to make a decision to grant the lasting power of attorney) when you make your lasting power of attorney. Find out more, and how to apply for lasting power of attorney on the Government website.

There are two different types of lasting power of attorney:

1. Property and affairs (money, housing, bills)
2. Health and Welfare (the care and support that you may need)

Deputies are usually close relatives or friends of the person who needs help making decisions. The court can appoint 2 or more deputies for the same person. You can apply to be a deputy if you’re 18 or over.

There are different types of deputies.

Property and financial affairs deputy

You’ll do things like pay the person’s bills or organise their pension. If you want to become a property and affairs deputy, you need to have the skills to make financial decisions for someone else.

Personal welfare deputy

You’ll make decisions about medical treatment and how someone is looked after. You cannot become someone’s personal welfare deputy if they’re under 16. Get legal advice on the Government website if you think the court needs to make a decision about their care.  Personal welfare deputies are only very rarely appointed. 

Paid deputies

Some people are paid to act as deputies (almost always for property and financial affairs), for example accountants, solicitors or representatives of the local authority. The Court of Protection can appoint a specialist deputy (called a panel deputy) from a list of approved law firms and charities if no one else is available. Find out more about the panel deputy on the Government website.

An advance decision to refuse treatment is a statement of instructions about what medical treatment you want to refuse in the future, in case you lose the capacity to make these decisions. For example, you could use it to say you do not wish to be resuscitated if you develop certain medical conditions in the future.

You can only make an advance decision to refuse treatment if:

• you have the capacity to make those decisions now
• you are an adult (at least 18 years old).

You can make an advance decision to refuse treatment in writing, by telling a health professional, or by having a note made in your hospital or GP medical notes.

It must be in writing, and comply with more formalities, if it is intended to apply to refuse life sustaining treatment. 

Read more information about advance decision to refuse treatment on the NHS website.

An advance statement is a written statement that sets down your preferences, wishes, beliefs and values regarding your future care.

The aim is to provide a guide to anyone who might have to make decisions in your best interest if you have lost the ability to make or communicate decisions.

An advance statement can cover any aspect of your future health or social care. This could include:

• how you want any religious or spiritual beliefs to be reflected in your care
• where you would like to be cared for, for example at home or in a hospital, a nursing home, or a hospice
• how you like to do things, for example if you prefer a shower instead of a bath, or like to sleep with the light on
• practical issues, for example who will look after your dog if you become ill.

Read more information about advance statements on the NHS website.

This is where a person tells an advocate what they would like them to say and do. The advocate’s role is to work with the person to bring this together in a way that puts the person’s point of view across clearly. The advocate may also support them in what they want to achieve.

When someone doesn’t have the capacity to tell the advocate what they want them to do, the advocate uses other approaches to make sure the person’s choices aren’t compromised. It could be that someone isn’t able to make a decision for themselves because of a brain injury, mental health issue, substance misuse or temporary unconsciousness. An advocate’s job is to make sure their best interests are represented. Our advocates use recognised ways to work with someone who isn’t able to communicate what they want. They’re trained to be aware that a person’s capacity might fluctuate, and continuously look out for opportunities to use instructed advocacy.

Statutory advocacy means a person is legally entitled to an advocate because of their circumstances. This might be because they’re being treated under the Mental Health Act or because they lack the mental capacity to make a particular decision. It also covers certain people who are in the care of the NHS or local authority, including prisoners.

An independent mental capacity advocate is a safeguard for people who lack capacity to make some important decisions. The independent mental capacity advocate role is to support and represent the person in the decision-making process. Essentially, they make sure that the Mental Capacity Act is being followed.

An independent mental capacity advocate must be requested to support a person where:

• the person is aged 16 or over
• a decision needs to be made about either a long-term change in accommodation or serious medical treatment
• the person lacks capacity to make that decision
• there is no one independent of services, such as a family member or friend, who is appropriate to consult

An independent mental capacity advocate may also be provided to people for other decisions concerning care reviews or adult protection. In adult protection cases, an independent mental capacity advocate may be instructed even where family members or others are available to be consulted.

For more information visit the websites below:

MIND: advocacy in mental health

UK Government: Independent Mental Capacity Advocate

An independent mental health advocate can help you to understand your rights when you are detained under the Mental Health Act.

Read more information about Independent Mental Health Advocates on the Mind website.

Care Act advocates support people to understand their rights under the Care Act and to be fully involved in a local authority assessment, care review, care and support planning or safeguarding process.

Care Act advocates can be requested where:

• a social care needs assessment, carers assessment, care planning, care review or safeguarding investigation is taking place
• without support, the person will have substantial difficulty being involved
• there are no appropriate, able and willing family or friends to support the person’s active involvement

These services continue to play an important role, providing advocacy where vulnerable people fall outside the eligibility criteria for statutory provision.

Self-advocacy is the ability to speak up for yourself and tell people what is important to you. Sometimes a person may not feel confident to do this, and may approach a group that help a person to develop these skills.

There are some situations where your freedom may be restricted, and you may be unable to make a decision about where you live, and the care you receive and an extra assessment process may be required. Your liberty can only be taken away from you in very specific situations. The Mental Capacity Act calls this a deprivation of liberty. It should only happen if:

• you lack capacity to make decisions for yourself about where you live
• the deprivation of liberty is in your best interests
• there is no less restrictive way to meet your best interests
• a due legal process is followed

A relevant person’s representative protects someone’s interests when they have been deprived of their liberty, coming to harm. A family member or friend can undertake this role or the local authority can appoint an advocate to be a relevant person’s representative when no friends or family are available to support the individual.

See our deprivation of liberty page for more information.