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What is mental capacity?

Every day we make decisions about lots of things in our lives. The ability to make these decisions is called mental capacity.

People may have difficulties making decisions some or all of the time. This could be because they have:

• a learning disability
• dementia
• a mental health problem
• a brain injury
• had a stroke

The Mental Capacity Act Code Of Practice has more information and guidance on how to assess someone's ability to make decisions.

• Download 'Mental Capacity Act 2005 Code of Practice' (PDF, 1131K) Opens new window

• Help with PDF files

What the Mental Capacity Act covers

The Mental Capacity Act covers major decisions about someone's property and financial affairs, health and welfare and where they live.

It also covers everyday decisions about personal care (such as what the person eats), when the person can’t make those decisions for themselves.

This means if you are unable to make some decisions, the Mental Capacity Act says:

• you should have as much help as possible to make your own decisions
• people should assess if you can make a particular decision
• even if you cannot make a complicated decision for yourself, this does not mean that you cannot make more straightforward decisions
• even if someone has to make a decision on your behalf you must still be involved in this as much as possible
• anyone making a decision on your behalf must do so in your best interests

• How to decide if a person lacks mental capacity

The main values of the Mental Capacity Act

The Mental Capacity Act sets out five principles - the values that are the basis of the legal requirements in the act.

Every adult has the right to make his or her own decisions and it must be assumed they can unless it is proved otherwise. Also, a person must be given all reasonable help before anyone treats them as though they are unable to make their own decisions.

Just because someone makes what might be seen as a poor decision, it should not be assumed that they are unable to make any decisions.

Any decision made for a person who is unable to so for themselves must be done in their best interests. Any decisions made for someone else should not restrict their basic rights and freedoms.

Organisations that protect vulnerable people

The Mental Capacity Act 2005 provides protection and support for people who lack capacity to make their own decisions. This is done through three main organisations:

• the Court of Protection
• the Public Guardian
• the Independent Mental Capacity Advocate

The Court of Protection

The Court of Protection has the power to make decisions about whether someone lacks mental capacity. It can also appoint deputies to act and make decisions on behalf of someone who is unable to do so on their own.

The Public Guardian

The Public Guardian is an individual whose role it is to protect people who lack mental capacity from abuse. The Public Guardian has several duties:

• registering Lasting Powers of Attorneys
• registering Enduring Powers of Attorney
• supervising deputies appointed by the Court of Protection

Independent Mental Capacity Advocates

An Independent Mental Capacity Advocate is someone appointed to support a person who lacks capacity and has no one to speak for them. Independent Mental Capacity Advocates only become involved when certain decisions need to be made involving serious medical treatment. Independent Mental Capacity Advocates are also involved in a change in the person's accommodation where it is provided by the NHS or a local authority.

• Concerns about a vulnerable person

• The Court of Protection and how it appoints deputies

• The Office of the Public Guardian and the registers of attorneys and deputies

Three Stories - a film about the Mental Capacity Act

'Three Stories' is a documentary about three real-life stories. It shows how the Mental Capacity Act helps and protects people who lack capacity to make some decisions.

The 15-minute-long film is available in three formats:

• Windows Media video - the WMV file
• QuickTime - the MOV file
• Real Player video - the RMVB file

• Download Mental Capacity Act video (WMV, 27342K)

• Download Mental Capacity Act video (MOV, 22919K)

• Download Mental Capacity Act video (RMVB, 30362K)

Useful contacts

• Government, citizens and rights contacts