I have concerns about mental capacity
What you can do about mental capacity depends almost entirely on one thing: whether the person still has it. While capacity is there, they can act for themselves and you can help them protect what they decide. Once it has gone, the only route left runs through a court.
That is why the worst thing to do is wait. Below is the order we suggest, and what each step is for.
While capacity is still there
1. Talk to a professional
Start with a solicitor for the legal side, and a GP for the medical side. A solicitor can say what documents are needed and whether the person understands enough to make them. A GP knows the medical history and can spot a treatable cause. Some confusion is caused by an infection, by dehydration, or by medication, and it lifts once the cause is treated.
Say plainly what you are worried about and when you first noticed it. Dates and examples are more use than impressions.
2. Get the important documents made now
A lasting power of attorney can only be made by someone who still has the capacity to make it. So can a will. Both become impossible the moment capacity goes, and the alternatives are slower, more expensive and decided by a court rather than by the person themselves.
3. Record the evidence at the time
Capacity is judged at the moment the decision was made. Years later, when a will or an LPA is questioned, the court has to work backwards from whatever evidence exists. Usually that is a file note and the memory of witnesses.
A Capacity Snapshot is a recorded account of the person answering questions about their decision, kept as evidence for when it is needed. It is not a medical assessment. It is a record of what they understood on the day, made while they can still speak for themselves.
4. Ask for a formal capacity assessment where there is real doubt
Where the doubt is serious, or where a challenge looks likely, a formal assessment by a doctor or another qualified assessor is worth the cost. An assessment is always about a specific decision. An assessor asked whether someone can make a will is answering a different question from one asked whether they can manage their money, so tell the assessor exactly which decision is in issue.
If capacity has already gone
No new lasting power of attorney can be made. Applications now go to the Court of Protection, which section 45 of the Mental Capacity Act 2005 establishes as a superior court of record. Two applications matter most:
- Deputyship. Under section 16 of the Mental Capacity Act 2005 the court may appoint a deputy to make decisions for the person, over their property and affairs, their personal welfare, or both. A deputy does the job an attorney would have done, but the court chooses who it is and supervises them.
- A statutory will. Under section 18 of the Mental Capacity Act 2005 the court’s powers over property and affairs extend to
the execution for P of a will
. This is how a will can be made for someone who can no longer make one themselves, where the existing will or the intestacy rules would produce an unfair result.
Both take time and both carry court fees. GOV.UK lists the current fees and forms.
Court of Protection or Office of the Public Guardian?
These two get confused constantly, and applying to the wrong one wastes weeks. The split is set by the Act itself.
- The Court of Protection decides. It rules on whether someone has capacity to make a particular decision, appoints deputies, allows one-off decisions, and orders statutory wills and gifts.
- The Office of the Public Guardian registers and supervises. Under section 58 of the Mental Capacity Act 2005 the Public Guardian keeps the register of lasting powers of attorney and the register of orders appointing deputies. The Public Guardian also supervises deputies appointed by the court, and deals with complaints about attorneys and deputies.
The short version: you apply to the court, and the OPG registers the result and keeps an eye on it afterwards. Deputyship and statutory wills are court applications, not OPG ones. Registering an LPA is an OPG job, not a court one.
If you are worried about how someone is being treated
If you think an attorney or a deputy is misusing their position, the Office of the Public Guardian investigates concerns about how they are carrying out their role. If someone is at immediate risk, contact the local authority safeguarding team or the police.
Do the part that cannot be done later
Advice can be taken next month. An assessment can be arranged next month. Evidence of what someone understood today cannot be created next month. If capacity is in doubt and the person can still speak for themselves, record it now.
This article is for general information and is not legal advice. Capacity Vault records evidence of capacity. It is not a doctor’s assessment and it is not a substitute for advice on your own situation. Please get in touch if you would like to talk it through.
Sources
- Mental Capacity Act 2005, section 16 on legislation.gov.uk
- Mental Capacity Act 2005, section 18 on legislation.gov.uk
- Mental Capacity Act 2005, section 45 on legislation.gov.uk
- Mental Capacity Act 2005, section 58 on legislation.gov.uk
- Court of Protection on GOV.UK
- Office of the Public Guardian on GOV.UK
- Become a deputy on GOV.UK
