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Who helps you if you lose mental capacity?

View profile for Lisa Cox
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Who helps you if you lose mental capacity?

The Coronavirus outbreak has prompted many of us to think about the future. Specifically, who would help us if we lost mental capacity. 

When someone has the capacity, they can make a Lasting Power of Attorney. This appoints attorneys to make important decisions and manage their day to day affairs on their behalf. 

As my colleague, Tim recently reported the number of people making Lasting Powers of Attorney is on the rise. The number of people registering Lasting Powers of Attorney in the 5 years up to 2018 increased by 180%. Last year, more than 800,000 applications were made. This brings the total registered Lasting Powers to over 3.9 million.  

If the person does not have the capacity to make a Lasting Power of Attorney, a deputy can be appointed.  The deputy will then be able to make decisions on behalf of the person lacking capacity.  This requires an application to the Court of Protection. 

Any application to the Court of Protection must be supported by an assessment from an expert. The expert has to confirm that the individual lacks the capacity to manage their affairs or the ability to make decisions regarding their health and welfare. Usually, the individual’s GP or social worker is appointed to assess their capacity. This is because they are likely to know the most about the person’s circumstances and state of mind. 


However, in light of social distancing and the lockdown of care homes, it seemed impossible for such assessments to take place. This meant that those in need for someone to manage their affairs were in limbo.


Thankfully, the Court of Protection has helpfully responded to this potential crisis by authorising capacity assessments to take place remotely. The court has encouraged the use of technology to allow them to carry on appointing deputies. This includes facetime, skype/business skype conferencing and telephone conferencing. This allows experts to meet with individuals to assess their capacity. 


People can be assessed as lacking capacity for a number of reasons. They may have had a serious brain injury or illness, be suffering from dementia or have severe learning disabilities. They may also have an impairment of or disturbance of the mind or brain. 


However, just because someone has one of these conditions does not automatically mean that they lack capacity. Capacity is decision specific, therefore it is possible that a person has the capacity to make some decisions but not others. Before making a decision on behalf of someone, the attorney or deputy should see if the individual has the capacity to make that specific decision themselves. 


The Mental Capacity Act 2005 was designed to empower and protect people who may lack the mental capacity to make their own decisions. This includes decisions about their property and financial affairs as well as their health care. The principles, laid out in the act, dictate that a person must be assumed to have capacity unless otherwise established.


Under the Mental Capacity Act 2005, practical steps must be taken to assist a person in making a decision, before they are treated as unable to do so. Someone also should not be treated as unable to make a decision merely because a decision they make is unwise. 


It is therefore crucial that expert advice is sought when considering whether an application to the Court of Protection to be appointed as a deputy. We have a dedicated team here at Birkett Long LLP who specialises in Court of Protection matters. We can assist with instructing someone to assess capacity and applications to the Court of Protection who appoint deputies. 

I am working from home, but available to talk if you need any further advice on Court of Protection matters. If you have a question, I would much rather you ask and we spend some time having a free chat, than not. I am based in our Colchester office and can be contacted on 01206 217307 or