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When people lack capacity

A person may lack capacity if:

• they have an injury or a disorder (for example, a disability, condition or trauma) that affects the way their mind or brain works and
• the injury or disorder means that cannot make a specific decision at the time it needs to be made

The following information explains how the Court of Protection assesses someone's capacity and when necessary how to make decisions in their best interests.

• The Court of Protection and how it appoints deputies

Assessing capacity

An assessment of capacity must be made in relation to a particular decision, at the time the decision needs to be made.

Any assessment starts with the assumption that the person has the capacity to make the decision in question.

The Mental Capacity Act Code of Practice describes a test of capacity you can use to decide whether a person is able to make that decision.

An assessment that a person lacks capacity to make a decision must never be based simply on:

• their age
• their appearance
• assumptions about their condition
• any aspect of their behaviour

There are several things to consider when assessing if a person can make a decision:

• do they have a general understanding of what decision they need to make and why they need to make it?
• do they have a general understanding of what might happen if they do or do not make, this decision?
• is the person able to understand, use and weigh up the information relevant to this decision?
• can the person communicate their decision (by talking, using sign language or any other means)?
• would the services of a professional (such as a speech and language therapist) be helpful?
• is there a need for a more thorough assessment (perhaps by involving a doctor or other professional expert)?

More detailed information on assessing capacity is available in chapter 4 of the Code of Practice.

• Download the Mental Capacity Act 2005 Code of Practice (PDF, 1131K)

• Help with PDF files

Making decisions in a person's best interests

Any decision you make for someone who lacks capacity must be made in that person's best interests.

The Mental Capacity Act does not define the term best interest. However there are some common things that you must always consider when working out what is in someone's best interests.

• all relevant circumstances should be considered
• you should make every effort to encourage and enable the person who lacks capacity to take part in making the decision
• if there is a chance that the person will regain the capacity to make a particular decision, then it may be possible to put off the decision until later
• the person's past and present wishes and feelings, beliefs and values should be taken into account
• the views of other people who are close to the person lacking capacity should be considered, as well as the views of an attorney or deputy

Please bear in mind that this list does not define what is in someone's best interests and is only a guide.

More detailed information on best interests is available in chapter 5 of the Mental Capacity Act Code of Practice.

• Being a court appointed deputy

• The roles and duties of an attorney under a Lasting Power of Attorney

• Download the Mental Capacity Act 2005 Code of Practice (PDF, 1131K)

• Help with PDF files

Useful contacts

• Government, citizens and rights contacts