What is Mental Capacity?
Mental capacity is the ability to make decisions. Some people may have difficulties making some decisions all or some of the time. This could be due to a learning disability, dementia, a mental health problem, a brain injury or a stroke.
The Mental Capacity Act 2005 came into force in England and Wales in 2007 and aims to ensure that people who lack mental capacity are given as much help as possible to make decisions and are enabled to participate in decisions made on their behalf. It will also ensure that any decisions are made in the person’s best interests.
The Mental Capacity Act 2005 affects anyone over the age of 16 years old and will apply in all sorts of decisions, for example financial matters, social care or medical treatment. It also covers the legal arrangements to plan ahead for a time when you may lack capacity to make certain decisions for yourself. This was previously referred to as an Enduring Power of Attorney and is now known as a Lasting Power of Attorney (LPA).
Legal definition of mental capacity
The legal definition says that someone who lacks mental capacity can’t do one or more of the following:
Understand information given to them to make a particular decision
Retain that information long enough to be able to make the decision
Use or weigh up that information to make the decision
Communicate their decision
A person’s mental capacity can be assessed by a relative or carer, but a formal assessment by a professional, such as a doctor or solicitor, may need to be made if the decisions are more complex. All professionals and paid carers must ‘have regard to’ a Code of Practice when supporting someone who lacks mental capacity.