Mental Capacity - Court of Protection

Mental Capacity (Court of Protection)

Understanding and navigating issues surrounding mental capacity can be complex and emotionally challenging for individuals and families. At Arcright Legal, we provide expert, compassionate legal guidance to ensure the best interests of those who may lack the capacity to make their own decisions.

What is Mental Capacity?

In England and Wales, mental capacity is governed by the Mental Capacity Act 2005 (MCA). This Act provides a legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves.

Crucially, mental capacity is decision-specific and time-specific. This means a person might have capacity to make some decisions (e.g., what to eat) but not others (e.g., complex financial matters), and capacity can fluctuate over time.

The MCA sets out a two-stage test to determine if a person lacks capacity:

1. Diagnostic Test: Does the person have an impairment of the mind or brain, or a disturbance in the functioning of the mind or brain? This could be due to an illness, injury, or condition such as dementia, a learning disability, or a stroke.
2. Functional Test: Does that impairment or disturbance mean the person is unable to make a specific decision when they need to? This means they cannot:
   • Understand the information relevant to the decision.
   • Retain that information.
   • Use or weigh that information as part of the decision-making process.
   • Communicate their decision (by any means).

It is a fundamental principle of the MCA that every adult is presumed to have capacity unless it is established otherwise. All practicable steps must be taken to help a person make their own decision before concluding they lack capacity.

The Court of Protection

When an individual is deemed to lack the mental capacity to make decisions about their property and financial affairs, or their health and welfare, and there is no Lasting Power of Attorney (LPA) in place, the Court of Protection steps in.

The Court of Protection is a specialist court that makes decisions on behalf of, or appoints people to make decisions for, individuals who lack mental capacity. Its primary role is to protect vulnerable individuals. This can involve:

• Appointing a Deputy to manage a person's affairs (either property and financial affairs or health and welfare).
• Making one-off decisions about a person's welfare, medical treatment, or living arrangements.
• Resolving disputes about a person's capacity or their best interests.
• Registering Lasting Powers of Attorney (LPAs), which are legal documents allowing a person to choose someone to make decisions on their behalf if they lose capacity in the future.

How We Can Help You

Navigating mental capacity issues and the Court of Protection requires sensitive, expert legal advice. Our team is dedicated to providing clear, practical support during what can be a very challenging time.

We can assist you with a wide range of matters, including:

• Advising on Mental Capacity Assessments: Guiding you through the process of assessing an individual's capacity for specific decisions.
• Applying for Deputyship Orders: Assisting with applications to the Court of Protection to become a Deputy for property and financial affairs or health and welfare.
• Challenging Capacity Decisions: Representing you if you wish to dispute a finding of lack of capacity.
• Best Interests Decisions: Providing advice and representation in disputes about an individual's best interests, including welfare and medical treatment decisions.
• Lasting Powers of Attorney (LPAs): Preparing and registering LPAs, ensuring your wishes are documented for the future.
• Statutory Wills: Applying to the Court of Protection for a Statutory Will if a person lacks capacity to make or change their own Will.
• Court of Protection Disputes: Representing clients in complex applications and disputes before the Court of Protection.
• Safeguarding Vulnerable Adults: Offering advice on safeguarding concerns and the protection of vulnerable individuals.

Our approach is always client-focused, ensuring that the dignity and best interests of the individual at the heart of the matter are paramount. We combine legal expertise with a compassionate understanding of the personal challenges involved.

If you or a loved one require advice on mental capacity or Court of Protection matters, please do not hesitate to contact us. We are here to help.