Understanding mental capacity

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If you need to understand the law around mental capacity

Someone who suffers an accident or falls ill could lose the ability to make decisions for themselves. This is a worrying and upsetting time for everyone concerned. If it’s someone you care about, you might start to wonder how you can safeguard them and their property on their behalf. But what does the legal process look like? What proof would the court need to see? And where do you start?

What the law says about decision-making

The Mental Capacity Act 2005 sets down certain principles for the treatment of people who may lack the capacity to make decisions for themselves. One is that everyone is assumed to be capable of making their own decisions until proven otherwise. Another is that everyone should be allowed to make decisions that seem unwise to others. But if you’re still worried that a loved one may lack mental capacity, you can ask them to attend an assessment. A range of professionals, including psychiatrists and solicitors, carry these out.  

How we can help

Our team of legal experts are on hand if you’ve got questions about mental capacity. We can explain the guidelines for establishing mental capacity and who might be able to carry out a formal assessment. We can also help you understand what could come after an assessment – such as an application to the Court of Protection for a deputy to be appointed to make decisions on behalf of the person concerned.

We’ll:

  • explain what the law says about mental capacity
  • explore your options for having someone’s mental capacity assessed
  • talk about what could happen after an assessment

All advice contained within this section relates to England and Wales only.

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Paul Hanford Sq Paul Handford With over 20 years of varied legal experience, Paul now specialises in private client work, which includes drawing up wills, deeds of trust, lasting powers of attorney. See profile
Sarah Henley Sq Sarah Henley Sarah trained and worked in private practice in Bristol before joining Which? Legal as a qualified solicitor in January 2018. Sarah provides advice to members on Wills and Powers of Attorney. See profile
Ben Rosser Sq Ben Rossor Ben joined Which? Legal in 2015 as a wills and probate specialist. Ben trained and qualified in private practice and now advises on a range of legal issues, including estate administration. See profile
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