Mental capacity

Mental capacity can be thought of as the ability to make your own decisions. Whilst we include a brief overview of what mental capacity means below, you can find out much more on the NHS website.

The Mental Capacity Act 2005

For the purposes of this Act, a person lacks capacity in relation to a matter if, at the material time, he/she is unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

The act also states a person is unable to make a decision for themselves if they are unable to:

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

If a person is unable to do any of the above three things or communicate their decision (by talking, using sign language, or through any other means), the Mental Capacity Act says they will be treated as unable to make the specific decision in question.

What happens if you haven’t put a power of attorney in place and you find you no longer have the mental capacity to make your own decisions?

England and Wales

Court of Protection/Deputyship Order

The Court of Protection protects the rights of people who do not have mental capacity. If you were to lose your mental capacity without having made or being capable of making a power of attorney arrangement, the Court of Protection can decide who can handle your affairs. Usually a close friend, family member or someone else who you trust applies to the Court of Protection for a court order to appoint a ‘deputy’. The court order will set out what decisions the deputy can make on your behalf (for example, it might say that decisions can only be made about that person’s pension or mortgage).

A Court of Protection Order is a legal document from the court appointing someone else (a deputy) to make decisions for someone who has lost their mental capacity. The court decides who to give responsibility to, and will supervise the deputies to make sure the account holder's interests are handled correctly.

Scotland

Access to Funds Scheme

This is an arrangement that will allow an individual, individuals or an organisation to access your funds to pay for your day-to-day living expenses and any debts due when you are no longer capable of accessing them yourself. The scheme will allow an individual, individuals, or an organisation to:

  • Request information about your account(s)
  • Open a bank/building society or other account in your name
  • Transfer funds between your accounts and close accounts, where necessary.
Guardianship Order

This is an order under the Adults with Incapacity (Scotland) Act 2000 from the Sheriff Court stating who has been appointed to look after your financial affairs, welfare or both, if you are unable to look after them yourself. It also details what the appointed guardian(s) can actually do.

Intervention Order

This is an order provided under the Adults with Incapacity (Scotland) Act 2000 from the Sheriff Court stating who has been appointed (the intervener) to make a particular decision or to take certain action on your behalf. Once that particular decision or certain action has been completed the order will automatically expire.

Northern Ireland

Controllership Order

The Office of Care and Protection protects the rights of people who do not have mental capacity. If you were to lose your mental capacity without having made or being capable of making a power of attorney arrangement, the Office of Care and Protection can decide who can handle your affairs. Usually a close friend, family member or someone else who you trust applies to the Court of Protection for a court order to appoint a ‘deputy’. The court order will set out what decisions the deputy can make on your behalf (for example, it might say that decisions can only be made about that person’s pension or mortgage).

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