Mental capacity and the Mental Capacity Act 2005 (England and Wales)

The Mental Capacity Act aims to protect people who can’t make a decision for themselves. It means that a person can plan ahead for a time when they may not be able to make decision themselves. It clarifies who can make decisions, in which situations, and how they should go about it. There are many parts to the Act including parts on Lasting Power of Attorney| and Advance Decisions to Refuse Treatment.

The Act states that a person lacks capacity if they are unable to make a decision for themselves - in relation to a specific matter - because of an impairment of, or a disturbance in, the functioning of the mind or brain.

A person will lack capacity if they’re unable to meet one of the following criteria:

  • 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
  • communicate their decision (whether by talking, using sign language or any other means).