The Mental Capacity Act

Making decisions on behalf of others

The Mental Capacity Act 2005 helps people over the age of 16, who may not be able to make certain decisions at some point in their life. It can also help people plan ahead for a time when they may be unable to make some, or all, decisions.

The decision may relate to:

where a person lives
care arrangements
managing money
care or treatment they have in hospital

The Mental Capacity Act is often referred to as the MCA. You can find out more about the Act on the government website.

Supporting someone to make a decision

If someone is unable to make a decision they may need support. Anyone who supports a person to make a decision must follow the process in the Mental Capacity Act and its accompanying Code of Practice on the government website.

If a decision is made on behalf of someone, the Mental Capacity Act says that the decision must be in a person’s best interests and must consider:

your wishes and feelings (current wishes and any expressed previously), as well as any beliefs and values that are important to you
any circumstances relevant to you, such as:
- the type of mental health problem or physical illness you have
- how long the problem / illness is going to last
- your age
- if you would normally take this decision yourself
- if you are likely to recover capacity in the near future
- who is caring for you
whether you will have capacity to make a decision in the future and whether the decision can be put off in the short-term
what support you might need for your involvement in acts done for you and decisions affecting you
the views of your carers, family, or others who may have an interest in your welfare, or people you have appointed to act for you

There may be other relevant things to consider depending on your situation. Read more about the Mental Capacity Act 2005 legislation on the government website.

Planning ahead for a time when you may lose your mental ability

We can plan ahead in case we are not able to make decisions about our lives.

Anyone can appoint someone to make decisions on their behalf in the future, or make a legally binding decision to specify any medical treatment you would not want to receive. The following sections below show the different ways you can plan ahead:

Lasting power of attorney

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.

There are two different types of lasting power of attorney:

Property and affairs (money, housing, bills)
Health and welfare (the care and support that you may need)

To find out more, including how to apply for lasting power of attorney, visit the government website.

Deputyship

Deputies are usually close relatives or friends, over the age of 18, of the person who needs help making decisions. The court can appoint two or more deputies for the same person. There are different types of deputies:

Property and financial affairs deputy

You will need to have the skills to make financial decisions for someone else as you’ll do things like paying the person’s bills or organise their pension.

Personal welfare deputy

You will make decisions about medical treatment and how someone is looked after. These deputies are only very rarely appointed. Get legal advice on the government website if you think the court needs to make a decision about someone’s care.

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.

Advance decision to refuse treatment

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 at least 18 years old

How to make an advance decision to refuse treatment

You can make an advance decision to refuse treatment:

in writing
by telling a health professional
by having a note made in your hospital or GP medical notes

If you want to refuse life sustaining treatment in the future, your decision must be in writing, signed by you and a witness.

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

Advanced statement

This 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 loose the ability to make or communicate decisions.

What an advance statement can include

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

Accessing support to make an important decision - advocacy

There are many different types of support available to help you make a decision and express your views or wishes. This includes:

if you need support to put your views across
support because you don’t feel confident
support because you are unable to make a decision

You can ask someone to help you with these decisions - this support is called advocacy.

Friends, family or carers can be an advocate for you, if you want them to. It can be good to get support from someone close to you, who you trust. You might want to agree with them beforehand what you both understand the role to mean, and what both your boundaries are.

To find out about the different types of advocacy and advocacy services that are available, visit our make your voice heard page.