The Mental Capacity Act 2005

Mental Capacity Act 2005

The Mental Capacity Act 2005 came into force in England and Wales in 2007. The Act aims to empower and protect people who may not be able to make some decisions for themselves. It also enables people to plan ahead in case they are unable to make important decisions for themselves in the future.

The Act applies to anyone aged 16 or over in England and Wales. It protects people with mental health problems as well as people with dementia, learning disabilities, or stroke or brain injuries. These people may find it difficult to make decisions some or all of the time. In addition, anyone can use the Act to plan ahead in case they are unable to make decisions in the future.

If you have 'mental capacity' you are able to make a particular decision for yourself. Mental capacity is not about someones capacity to make a range of decisions. The legal definition says that someone who lacks capacity cannot, due to an illness or disability such as a mental health problem, dementia or a learning disability, do the following:

  • understand information given to them to make a particular decision
  • retain that information long enough to be able to make the decision
  • use or weigh up the information to make the decision
  • communicate their decision

The Mental Capacity Act can apply to all sorts of decision such as:

  • major decisions such as decisions about personal finance, social care or medical treatment
  • everyday decisions such as decisions about what to wear or eat

The Act also explains how anyone can plan ahead for a time when they may lack mental capacity by using a Lasting Power of Attorney (LPA) to appoint someone to make decisions on their behalf. This includes decisions about property and financial affairs as well as health and personal welfare decisions. LPAs replace the existing Enduring Powers of Attorney (EPAs), although EPAs made before October 2007 can still be used.

The Act also enables you to make an 'advance decision to refuse treatment' if there is a particular treatment you would not want if you ever lack capacity to refuse it. Advance decisions are legally binding and must be followed by doctors, with the exception of compulsory detention or treatment for a mental disorder under the Mental Health Act.

The Mental Capacity Act 2005

The Mental Capacity Act NHS guidance

Making a Lasting Power of Attorney