When a family member or a loved one no longer has the mental capacity to make important decisions for themselves, it is essential that any care they receive is in their best interests. The expert lawyers at Compensation Solicitors Online can provide the necessary support and advice to the family/carer(s) of the mentally incapacitated person in this difficult time of their lives.
We can attend you at your home, if necessary, to discuss your claim and assess it for FREE.
THE MENTAL CAPACITY ACT 2005
The Mental Capacity Act 2005’s aim is to protect people who cannot make decisions for themselves or lack the mental capacity to do so. There are various reasons why a person might lack mental capacity, including mental health condition, a severe learning difficulty, a brain injury, a stroke or unconsciousness due to an anaesthetic or sudden accident, etc.
Under the Mental Capacity Act 2005 there is the presumption that a person has the capacity to make their own decisions ‘unless all practical steps to help him (or her) to make decision have been taken without successes’. Moreover, incapacity is not based on the ability to make wise or sensible decisions.
In order for a person to have capacity, s/he must be able to:
- Understand the information relevant to the decision;
- Retain this information;
- Use or weigh the information up as part of the process of making the decision;
- Communicate the decision they have made.
If a person is unable to do all of the above, then he may have mental incapacity. The test to determine mental incapacity is two-fold:
- Does the person have an impairment of the mind or the brain, or some other disturbance which affects the way their brain works?
- If so, is the disturbance so great that the person lacks the capacity to make the particular decision for themselves?
If this is the case, then a decision will be made by someone else. In any event, any decision made for a mentally incapacitated person must be in the best interest of that person. The Mental Capacity Act 2005 sets out things to be considered when deciding what constitutes
the best interest of that person:
- All relevant circumstances must be considered.
- Assumptions should not be made on the basis of age, appearance, condition or behaviour.
- It must be taken into consideration whether and when the person will have the capacity to make the decision themselves.
- The person’s express wishes, beliefs and values must be taken into consideration.
- The views of others with an interest in the person’s welfare should be taken into account.
- You must not make a decision about life-sustaining treatment ‘motivated by a desire to bring about her/his death’.
- You should support the person’s participation in any acts or decisions made for them.
The Mental Capacity Act 2005 came into force on 1 October 2007. It affects the way in which people can decide their affairs in the event of mental incapacity with regards to the following:
Lasting power of attorney (LPA): a person can grant an LPA to another person or persons in order for them to make decision over her/his personal welfare, property and financial affairs. An enduring power of attorney (EPA) previously only enabled a person to make decisions over another’s property and financial affairs. EPAs made before the coming into force of the Mental Capacity Act 2005 are still valid.
Deputies: these may be appointed by the Court of Protection to make decisions for a mentally incapacitated person.
The Court of Protection: it oversees the operation of Mental Capacity Act 2005 and deals with all issues related to decisions for people who lack the mental capacity. It also resolves problems of dispute where the meaning of what is ‘in the person’s best interest’ is challenged.
The Public Guardian: oversees LPAs, EPAs and deputies.
The Code of Practice for the Mental Capacity Act 2005: complements the Act and provides guidance for professionals in applying and interpreting the Act.
THE COURT OF PROTECTION
The Court of Protection oversees the operation of the Mental Capacity Act 2005 and deals with all issues related to decisions for people who lack the mental capacity. It also resolves problems of dispute where the meaning of what is ‘in the person’s best interest’ is challenged.
POWER OF ATTORNEY
A legal power of attorney enables another to make personal welfare, property and financial affairs decisions if the time comes when you lack the capacity to do so for yourself.
A Lasting Power of Attorney is granted in a legal document which must be as clear and precise as possible. Compensation Solicitors Online’s specialist Power of Attorney solicitors will help you in drafting and obtaining Power of Attorney, keeping the process for you as simple and straightforward as possible. Furthermore, we can assist you in applying to the Court of Protection to be appointed as Deputy in the event of the lack of a LPA or an EPA.
WHY COMPENSATION SOLICITORS ONLINE?
Our experts have years of experience in handling cases which involve people with mental incapacity. We appreciate the seriousness, importance and emotional aspect of such cases. Therefore, we are able to provide you with the best legal advice and support as well as to recommend and help you find other support services, such as rehabilitation facilities or medical expert advice. Our main goal in handling these cases is to obtain a result which is in the best interest of the mentally incapacitated individual. Furthermore, we do everything we can to assist their family/carer(s) in achieving this.
There are a variety of funding options open to you. We will discuss these options with you in more detail and where appropriate represent you on a no win no fee basis (also known as a Conditional Fee Agreement).
You may wish to look for more information on related topics under the following sections on our website:
- CARE HOME FEES RECOVERY
- SPINAL INJURY CLAIMS
- SERIOUS INJURY CLAIMS
- AMPUTATION CLAIMS
- BRAIN INJURY CLAIMS
- CEREBRAL PALSY CLAIMS
MAKE A CLAIM
If you would like to speak directly to one of our team you can either call us on 0208 203 4999 or send us your enquiry and we will give you a call back to discuss your claim within 1 business day.
GOV.UK: Court of Protection
GOV.UK: Apply to the Court of Protection
GOV.UK: Become a court-appointed deputy
Ministry of Justice: Court of Protection Guidance
Judiciary of England and Wales: Court of Protection Practice Directions and Court Rules
British and Irish Legal Information Institute: England and Wales High Courts (Court of Protection) Decision
GOV.UK: Lasting power of attorney
Citizens Advice Bureau: Managing affairs for someone else
NHS choices: Power of attorney
NHS choices: Mental Capacity Act