Mental Capacity Act, Lasting Power of Attorney’s and Court of Protection

Published: 22/05/2019

In our latest guest blog, Gilbert Stephens, Solicitors in Exeter and East Devon discuss the Mental Capacity Act, Lasting Power of Attorney’s and Court of Protection.

Gilbert Stephens are working alongside Bluebird Care Exeter and East Devon, in offering guidance and advice on all aspects of mental capacity and how this may affect customers or their loved ones.

The relevant law which sets out the test for mental capacity is to be found in the Mental Capacity Act 2005. The law is based on the assumption that a person has mental capacity unless it is established that he or she does not. The Act sets out criteria to enable that assessment to be made and it is important to emphasise that just because a person is elderly or ill or prone to making unwise decisions it does not mean in the eyes of the law that that person lacks mental capacity.
Section 2(1) of the Mental Health Act 2005 defines lack of mental capacity as follows;
  a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain.
It is also important to note that a lack of capacity can be temporary as well as permanent and that different levels of capacity can apply depending on the decision that needs to be made. The Act goes on to set out in some detail the criteria which define whether or not a person is able to make a particular decision for themselves. It is not possible to set out the criteria at length in this blog but further information on this can be found at
Assessment of a person’s mental capacity should be made at the time when the particular decision by that person needs to be made and should be carried out by a doctor or other suitable professional expert.  It follows that when mental capacity of a person might be an issue in any given situation that appropriate legal advice should be taken at that stage.
Whilst the Mental Health Act 2005 sets out a statutory framework to deal with the whole range of the management of a person’s affairs if and when that person has lost mental capacity, the Act also provides a procedure whereby someone can appoint a person under a Lasting Power of Attorney (LPA) to manage their affairs on their behalf even after they have lost their mental capacity. However, it is important to note that a person can only make an LPA whilst they have the requisite mental capacity to do so. An LPA enables the person to appoint someone to make decisions on their behalf in relation to their property & financial affairs or personal welfare in the event that they are unable for whatever reason to make those decisions for themselves.
If a person loses mental capacity without having made an LPA then it would be necessary for the Court of Protection to appoint a suitable person to act as a Deputy to manage that person’s affairs.  The initial appointment and ongoing management costs of the Deputy are likely to be substantial and would have to be paid out of that person’s funds. It is therefore strongly recommended that a person has an LPA to safeguard themselves against such an eventuality.
Professionals and others working in the health and social care field often find themselves having to deal with mental capacity issues and are therefore affected by the provisions of the Mental Health Act 2005 and need to be familiar with it.  They have a duty to adhere to the Act’s Code of Practice and any regulations made under the Act. Doctors, nurses, psychologists, therapists, social workers, residential & care home managers, care staff, domiciliary care workers, support workers and people acting as attorneys or as deputies appointed by the Court of Protection all have, under the Act, a duty of care to a person who lacks the capacity to agree to the care that is being provided. 
Gilbert Stephens are able to offer more information about the law relating to mental capacity and answer any questions relating to it and will be running regular presentations for Bluebird Care staff and customers on the Mental Health Act 2005 and any allied issues relating to it. Please speak to Lydia Ward for dates of the next available presentation to book your place by emailing or ringing 01392 426006.