Power of Attorney and the Mental Capacity Act

New York or Las Vegas? Ketchup or brown sauce? Train or bus? Every day we make simple decisions such as where we go on holiday, what we eat and our method of travel.

But what happens when we lose mental capacity and are no longer able to make these decisions?

Every day, people of all ages can become mentally incapacitated due to illness or injury. Whether it happens suddenly or gradually, it can have devastating effects on both them and their family.

The Mental Capacity Act 2005 (MCA) provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. It makes it clear who can take decisions, in which situations, and how they should go about this. It enables you to appoint someone to take decisions or make actions on your behalf with a Power of Attorney, should you lose mental capacity.

This person is called your Attorney and you can decide who the most appropriate person is to have this authority, what exactly what they’re authorised to do, and under what circumstances. This could just be temporary, for example, if you are in hospital and need help with everyday things such as making sure that bills are paid. Or you may need to make more long-term plans, for example, if you have been diagnosed with dementia.

You must take out a Power of Attorney when you still have mental capacity. In order to establish whether an individual does, in fact, have the capacity to make a particular decision at a particular time, a functionality test was brought in by the Mental Capacity Act.

The MCA sets out a two-stage test of capacity:

1) Does the individual concerned have an impairment of, or a disturbance in the functioning of, their mind or brain, whether as a result of a condition, illness, or external factors such as alcohol or drug use?

2) Does the impairment or disturbance mean the individual is unable to make a specific decision when they need to? Individuals can lack capacity to make some decisions but have capacity to make others, so it is vital to consider whether the individual lacks capacity to make the specific decision.

Also, capacity can fluctuate with time – an individual may lack capacity at one point in time, but may be able to make the same decision at a later point in time. Where appropriate, individuals should be allowed the time to make a decision themselves.

The MCA says a person is unable to make a decision if they cannot:

  • understand the information relevant to the decision
  • retain that information
  • use or weigh up that information as part of the process of making the decision

If they aren't able to do any of the above three things or communicate their decision (by talking, using sign language, or through any other means), the MCA says they will be treated as unable to make the specific decision in question.

No one knows what lies ahead so it is important to have a Power of Attorney set up to allow you to plan ahead, making sure that all your wishes are respected – whatever happens. It gives you the added confidence of knowing your future is in the hands of someone who really cares about you, should the unexpected occur.

As experts in later life planning, Golden Charter offers a range of legal services designed to help you take control, protect your assets and plan ahead in the way that’s right for you. We can help you to ensure your final wishes for your estate (your home, your savings and your personal belongings) are carried out quickly and easily.

Find out more by visiting Golden Charter's Power of Attorney service page or by calling us free on 0800 171 2967.