One of the underlying principles of the Mental Capacity Act 2005 is that every person over the age of 16 should have the right to make decisions affecting their life and should be assumed to have the capacity to do so.
If someone isn’t able to make these decisions, even with support and encouragement, they are said to lack mental capacity.
People may lack mental capacity for all sorts of reasons; however, it is often as a result of dementia, a serious head injury or severe learning disabilities.
Becoming someone’s deputy
If you are supporting someone who lacks mental capacity and is unable to make their own decisions, you can apply to the Court of Protection to become their ‘deputy’.
Before you apply, it’s a good idea to check if they have already have a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA) in place. If they do, they will not usually need a deputy too.
As a deputy, you are responsible for helping the person make decisions or to make decisions on their behalf.
There are two types of deputy: Personal Welfare and Property and (Financial) Affairs.
A Property and Financial Affairs deputy is responsible for managing someone’s money and property, e.g. paying bills, selling a house.
(Note: if you’re just looking after someone’s benefits, you don’t need to be a deputy but should apply to become an appointee.)
A Personal Welfare deputy makes decisions about someone’s medical treatment and personal care services.
You can apply to be one type of deputy or both. If you are appointed, the Court of Protection will issue a court order outlining what you can and can’t do.
The Court of Protection provides detailed information about becoming a deputy, including what level of supervision to apply for, fees payable and the necessary forms to apply.
When no-one is able to support the person who lacks capacity
In situations where a person lacks capacity and they have no-one to support or represent them, an Independent Mental Capacity Advocate may be appointed.
If someone is receiving treatment under the Mental Health Act, an Independent Mental Health Advocate will be appointed.
The Mental Capacity Act
The Alzheimer’s Society has information about the Mental Capacity Act on its website.
Mencap has produced a Mental Capacity Act resource pack for the family and carers of people with learning disabilities.
Hafal has produced a brief guide on the Act for people with mental health needs and their families.