Understanding Mental Capacity in the UK
Mental capacity is the ability to make your own decisions. In the UK, it’s a key legal concept that affects how decisions are made on behalf of individuals who may be unable to make choices for themselves due to illness, injury, or disability.
What Is Mental Capacity?
Mental capacity refers to whether someone is able to:
- Understand the information relevant to a decision,
- Retain that information long enough to make the decision,
- Weigh up the information to make a choice, and
- Communicate that decision in any way (e.g. verbally, through gestures, or with support).
A person may lack capacity for some decisions but not others, and their ability can change over time.
The Mental Capacity Act 2005
In England and Wales, the Mental Capacity Act 2005 provides a framework to protect and empower individuals who may lack the ability to make certain decisions for themselves. It covers decisions about health and welfare, finances, property, and more.
The Act is underpinned by five key principles:
- Presumption of capacity – Every adult has the right to make their own decisions unless proven otherwise.
- Support to make decisions – People should be given all practicable help to make a decision before concluding they can’t.
- Right to make unwise decisions – Making a decision others consider unwise does not mean someone lacks capacity.
- Best interests – Any decision made for someone who lacks capacity must be in their best interests.
- Least restrictive option – Any intervention should be the least restrictive of the person’s rights and freedoms.
Lasting Power of Attorney (LPA)
One way to plan ahead for a time when you might not have capacity is to set up a Lasting Power of Attorney (LPA). This is a legal document that allows you to appoint someone you trust (an “attorney”) to make decisions on your behalf.
There are two types of LPA:
- Health and Welfare LPA – Covers decisions about medical care, daily routines, moving into a care home, and life-sustaining treatment.
- Property and Financial Affairs LPA – Covers managing money, paying bills, and handling property or pensions.
An LPA must be made while you still have capacity, and it must be registered with the Office of the Public Guardian before it can be used.
Healthcare Decisions and Mental Capacity
If a person lacks capacity to make a specific healthcare decision (e.g. undergoing surgery, accepting or refusing treatment), professionals must assess capacity for that specific decision at that time.
If there’s no LPA in place, decisions are made in the person’s best interests, and may involve:
- Consulting family members or carers,
- Considering any previously expressed wishes,
- Taking into account any Advance Decisions to Refuse Treatment (also known as Living Wills).
In some complex or disputed cases, the Court of Protection may become involved to make or approve decisions.
Planning Ahead
Thinking about mental capacity and planning ahead ensures that your wishes are respected and your loved ones are supported. Setting up an LPA and discussing your preferences for future care can bring peace of mind and help avoid difficulties later on.