What is considered a Lack of Capacity?

Once we reach adulthood in the UK, at the age of 18 years, we are generally considered to be mature enough to enter into legal agreements.

At this point, we are presumed to be of sound mind and have an ‘inherent capacity’ to make our own decisions.

However, should we ever lack the capacity to make legal decisions for ourselves, for example, by sustaining a brain injury or developing Alzheimer’s disease, legal contracts can become null and void. They can also become open to contest by legal guardians or representatives.

People can be deemed to ‘lack mental capacity’ on either a short term or long term basis.

A short-term lack of capacity might be caused by a temporary mental health condition, sedation or disorientation due to a medicine interfering with normal brain function. A long-term lack of capacity might affect a person who has sustained a severe head trauma, who has dementia or who suffers from hallucinations or psychotic disorders.

 What is the Mental Capacity Act 2005?

The Mental Capacity Act explains exactly what ‘lack of capacity’ means.
This critical piece of legislation was explicitly designed to protect individuals who lack mental capacity, and more importantly, to empower them to make their own decisions whenever possible.
The Mental Capacity Act primarily deals with Court of Protection, Deputies and Lasting Powers of Attorney.

  What is the Court of Protection?

The Court of Protection makes decisions on a person’s behalf should they lack the mental capacity to make those decisions for themselves. These decisions are often managed by a ‘deputy’, which is a person appointed by the Court of Protection. The Court will generally tend to nominate a family member. In cases where this is not possible/viable, they may appoint a solicitor who specialises in Court of Protection matters.

  What does a Deputy do?

First and foremost, a deputy who is appointed to an individual is duty-bound to always act in that person’s best interests. This means taking into account their wishes and beliefs and also consulting with their family, friends, medical professionals and carers before making important decisions.

A deputy must ensure that they keep their own money separate from that of the person whom they are acting as deputy for (“P”) and not spend any portion of their money on themselves. If “P” happens to have a large sum of money, their Deputy should consider whether or not to invest it, and they may take legal/financial advice regarding this.

  Is a Deputy permanent?

It is important to remember that a Deputy can only make a decision on a person’s behalf where they cannot make the decision themselves. Where a person has capacity, or regains capacity after a temporary lack, then the choice is theirs to make and theirs alone. The Deputy cannot make it for them, even if he or she disagrees with them.

  Can I change my Deputy?

Where a person disagrees or falls out with their Deputy, they can ask the Court of Protection to remove and replace them. If the Court agrees that this is in their best interests, then a replacement deputy can be appointed.
Having a reputable Court of Protection specialist solicitor by your side for matters of this nature will inevitably offer you the best possible chance of navigating legal disagreements and lengthy court cases.

So, if you or a member of your family is concerned about anything related to matters relating to the Court of Protection, Professional Deputies or Lasting Powers of Attorney, then please don’t hesitate to contact us:

Tom YoungCourt of Protection Solicitor
Tel: 0161 615 5554
E-mail: Tom.Young@psg-law.co.uk
Webchat: www.psg-law.co.uk