Mental capacity is your ability to make decisions which may affect you, such as about your health, welfare, property or personal finances.

Donna Rowland, an Associate in the private client department at WBW Solicitors in Newton Abbot, outlines how mental capacity is assessed under the Mental Capacity Act 2005 and explains the uses of a Lasting Powers of Attorney.

You may be born lacking mental capacity, or it may be something you lose later in life through illness, an accident, or substance abuse.

Examples of people who may lack capacity include those with:

  • dementia;
  • a severe learning disability;
  • a brain injury;
  • a mental health illness;
  • a stroke; or
  • unconsciousness caused by an anaesthetic or sudden accident.

Just because a person has one of these health conditions, however, does not necessarily mean they lack the capacity to make a specific decision.

The Mental Capacity Act 2005 was introduced to protect and empower people who are not capable of making their own decisions. According to the Act, 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; and
  • communicate their decision (whether by talking, using sign language or any other means).

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

  1. Does the person have an impairment of their mind or brain, whether as a result of an illness or external factors such as alcohol or drug use?
  2. Does the impairment mean the person is unable to make a specific decision when they need to?

People can lack capacity to make some decisions, but they may have capacity to make others. Mental capacity can also change over time. Someone may lack capacity at one point, but they may be able to make the same decision at a later date. The Act stipulates that where possible people should be encouraged by whatever means and allowed the time to make a decision themselves.

Generally, the person who is involved with the specific decision which needs to be made is the one who would assess mental capacity. However, if the decision is complex then a professional opinion might be necessary, for example the opinion of a psychiatrist, psychologist, social worker etc.

The Court of Protection oversees the operation of the Mental Capacity Act and also hears important cases, such as whether the NHS should withdraw treatment, whether a serious medical treatment decision is in a person’s best interests, or whether it is in a person’s best interests to be deprived of their liberty.

It is becoming increasingly common for people in good health to appoint someone they trust to make decisions for them should they lose mental capacity later in life. This is achieved by drawing up a lasting power of attorney of which there are two types:

  • A financial lasting power of attorney which gives your attorneys the power to manage matters such as running your bank accounts, deal with your investments, pay your bills, apply for benefits, and to purchase or sell property etc. if you are incapacitated.
  • A health and welfare lasting power of attorney which lets your attorneys make day-to-day decisions for you if you lose mental capacity and are no longer able to make decisions for yourself. This covers things such as eating, washing, medical care, where you should live, or whether to continue life-sustaining treatmentetc..

If there is no lasting power of attorney and you lose mental capacity, the Court of Protection will appoint a deputy to make decisions on your behalf.

For more information on mental capacity, or any other private client issue, contact Donna Rowland at WBW Solicitors in Newton Abbot on 01626 202416 or email

WBW has offices in TorquayPaigntonNewton AbbotExeterBovey Tracey,  Exmouth,  Honiton,  Sidmouth,  Launceston,  AxminsterChard and Seaton.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.