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Mental Capacity Act 2005

The Mental Capacity Act protects your money and your health and welfare, if you can't make all your own decisions.

You may lack the capacity (not be able) to make all your own decisions because of dementia, a head injury or stroke, a learning disability, an episode of mental illness or some other reason.

You may have the capacity to make everyday decisions, but not to make larger, more complex decisions.

You may have the capacity to make decisions one day but not the next.

Your capacity to make decisions might improve or get worse over time.

Whatever the situation, the new law will protect your rights.

• Making an advance decision to refuse treatment
• Lasting power of attorney
• Acting in your best interest
• Independent Mental Capacity Advocate

Make an advance decision to refuse treatment if there is a particular medical treatment you would not want in the future. This could include life-sustaining treatment.

In the future you may not be able to tell people what treatments you don't want - perhaps because you can't communicate or because you don't have the mental capacity. Your family may know your wishes, but what if they aren't there?

You should write down your advance decision and give a copy to key people - your family and your GP for example. If you can't write, then tell them your advance decision. There's a form at the bottom of this page that you can use to write your advance decision.

You can also fill in an advance decision card (available across the city) which gives the name and telephone number of the people who have a copy of your advance decision. Keep the card in your wallet or purse.

Should the worst happen, health staff will find your card and know who to contact to find out your advance decision.

If doctors know you have made an advance decision to refuse treatment, they have to respect it.

Lasting power of attorney

You can give other people Lasting Power of Attorney over your money and your welfare (health and social care), should you lose the capacity to make decisions. Lasting Power of Attorney allows people you trust to make decisions on your behalf. You need to have one for your money and a different one for your welfare.

Whoever you decide should have Lasting Power of Attorney has to be registered with the Office of the Public Guardian, which will make sure the powers aren't being abused.

If you already have an Enduring Power of Attorney, you must also register this with the Office of the Public Guardian, for it to be effective.

Acting in your best interest

Before anyone makes decisions for you, they must do everything possible to help you make your own decisions. If you don't have the capacity to make decisions, then any decisions must be in your best interest.

Independent Mental Capacity Advocate (IMCA)

For people who don't have anyone to help them, there is an Independent Mental Capacity Advocate (IMCA) who will represent their best interests.

Office of the Public Guardian and the Court of Protection

The Office of the Public Guardian helps protect people who lack capacity to make decisions. The Public Guardian has set up and looks after registers of Powers of Attorney, supervises deputies working with people who lack capacity and supports the work of the Court of Protection.

Where there are very complex and difficult decisions about whether someone has the capacity to make decisions, the Court of Protection can be asked to make a ruling. The Court of Protection can:

• decide whether a person has capacity to make a particular decision for themselves
• make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions
• appoint deputies to make decisions for people lacking capacity to make those decisions
• decide whether a Lasting Power of Attorney or Enduring Power of Attorney is valid
• remove deputies or attorneys who fail to carry out their duties.

You can find out more about the Mental Capacity Act and how it will affect you at the the Office of the Public Guardian.

You can watch some videos about real-life stories where the Mental Capacity Act has helped someone on DirectGov

This page was last updated on 04 June 2008

• Planning services
• Professionals

See also

• Age Concern
• Care Services Improvement Partnership
• Department for Constitutional Affairs
• Department for Health
• Directgov
• Help the Aged
• Mencap
• Mind
• Rethink - mental health membership charity