Mental capacity solicitors
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Our experienced mental capacity solicitors are ready to support you and your loved ones with financial, health and welfare issues.
We help and advise individuals and families when a person lacks the mental capacity to make their own choices and decisions.
This can be due to a wide range of reasons including learning disability, dementia, coma, a brain injury or mental health issue, including addiction. Reduced mental capacity may be sudden or gradual, permanent or temporary. Our mental capacity lawyers are here to support people whatever the circumstances – and in cases where there are disagreements over what is in the best interests of the person in question.
Our solicitors understand the complexities, emotion and challenges of caring for someone who is mentally incapacitated and we’re here to try to smooth the path as much as possible.
Do get in touch for an informal discussion about our services.
What does mental capacity mean?
Mental capacity is the ability to make choices and decisions and is something we all exercise continuously in the big and small decisions we make.
When ill health, injury or disability mean a person lacks capacity to make their own choices the Mental Capacity Act 2005 is there to protect them.
The Act sets in place a number of protections and processes to ensure that when someone is unable to make choices for themselves, their best interests are looked after.
Our solicitors support people in making provision for a loss of mental capacity through Lasting Powers of Attorney and Advance Decisions.
Where provisions have not been made in advance or there are disagreements about what is in the best interests of a person we support with Court of Protection processes. Our specialist solicitors have extensive knowledge and experience in all aspects of the specialist court, mental capacity law, wills and probate and advising on deprivation of liberty and deputyship.
Who our mental capacity solicitors work with
Our solicitors act for people with a wide range of injuries and needs including:
Why choose Enable Law mental capacity solicitors?At Enable Law, our specialist solicitors have been dealing with mental capacity issues for many years and have built up a wealth of experience in ensuring the best interests of all involved are met. Our team is passionate about - and expert in - helping individuals and families with mental capacity related issues. Asha Beswetherick, Senior Associate at Enable Law, said: “The mental capacity team specialise in helping others who are unable to look after themselves. It’s all about the empowerment of the person, bringing their interests at the heart of all the decision making.”
When is a mental capacity solicitor needed?
Mental capacity solicitors can help to put arrangements in place in case of future issues, or when an issue has already arisen. That includes:
- living wills
- deprivation of liberty issues
- property and financial issues
- health related decisions
- and all the other decisions and disputes that can arise.
We can support you to gain authority to be involved in decision making for someone via a power of attorney or, where that is not in place, as a deputy.
Our solicitors are also here to help when disputes arise over:
- whether a person has the mental capacity to make their own choices
- what is in the best interests of an individual where it is agreed they do not have sufficient mental capacity to make their own decision
Disputes may arise over a vast amount of things when someone does not have the mental capacity to make their own choices. These may include:
- whether a person could or should live independently or the specific residential care they should move to
- the type of care the person requires or is entitled to
- contact with others
- decisions over medical treatment such as resuscitation or stopping or continuing life support.
What is a mental capacity assessment?
A mental capacity assessment is carried out to determine whether someone has the ability to make a specific decision for themselves.
The start point assumption before a test is carried out is always that a person does have the ability to make decisions for themselves, but the test may demonstrate that an individual needs a relative or professional to make decisions in their best interest.
The assessment is in two stages.
- The first stage seeks to reveal if there is a potential impairment to mental capacity.
- The second seeks to understand how the impairment affects a person’s ability to make a specific decision, such as in regard to their own care or a house sale.
A mental capacity assessment will deem a person unable to make a decision for themselves, if they:
- do not understand the information relevant to the decision
- cannot retain the information related to the decision
- are unable to use the information as part of the process of making a decision.
Our solicitors can support in cases where you are entering the mental capacity assessment process or one has already been done. Do contact us.
You can read more in our article ‘Everything you need to know about mental capacity assessments’.
What is the Mental Capacity Act 2005?
The Mental Capacity Act 2005 offers the legal framework needed to determine who can act on behalf of adults who lack the capacity to make their own decisions.
‘Lack of capacity’ can be as a result of a severe learning disability, dementia, mental health problems, a brain injury, a stroke or because someone is unconscious due to anaesthetic or a sudden accident. Capacity can be regained as well as lost.
It is the Mental Capacity Act (MCA) that gives the specialist court, the Court of Protection, the authority it needs to make orders about personal welfare and also property and financial affairs matters for those who lack the capacity to make those decisions. It also allows an individual, while they are able to do so, to appoint someone to make decisions for them when they no longer have the capacity to do so.
Section 1 of the MCA sets out five principles that must be followed by anyone dealing with an adult who does not have, or may lack, capacity.
Mental Capacity Act 5 Principles
Those principles are:
- Until proven otherwise, it should be presumed that all individuals have capacity.
- A person is not to be treated as being unable to make a decision unless all practicable steps have been taken to help him make that decision themselves.
- A person is not to be treated as being unable to make a decision merely because they make an unwise decision.
- Any decision made or act done under the MCA on behalf of a person who lacks capacity must always be in their best interests.
- Before the decision is made, or the act is done, there must be due consideration as to whether the purpose for the decision or act can be achieved as effectively in a way that is less restrictive of the person’s rights and freedom of action.
These principles must always be considered by a deputy (a person appointed to make decisions on behalf of a person who does not have mental capacity) whenever they act.
Mental capacity can fluctuate
The Mental Capacity Act recognises that capacity can fluctuate over time. It is for this reason that the ‘assessment of capacity’ needs to be made for a specific decision and at the time the decision needs to be made.
The MCA also has a code of practice for both deputies and those with lasting power of attorney. This code has statutory force and can be used in action against the deputy or attorney in the event they are not fulfilling their duties in a proper manner.
Our solicitors are experts in the Mental Capacity Act and offer detailed specialist advice and guidance. We’ll be there with you throughout, whatever you are facing.
Our mental capacity lawyers support the Office of the Public Guardian
We fully endorse and support the Office of the Public Guardian (OPG) in its vision for the future development of the work of the OPG ‘to encourage everyone to prepare for a possible lack of mental capacity and to empower and safeguard those who lack mental capacity now’.
Further information on mental capacity legal issues
We’re happy to advise you on your next steps if you are involved in a mental capacity issue. Our patient and friendly team is here to listen and help. Please do get in touch.
You can also find further information from our solicitors on our mental capacity frequently asked questions page here.
We have some specific mental capacity guides too, including:
- The Coronavirus Act – What has changed for the mental capacity sector
- Cross-border mental capacity issues – information about the additional challenges when a person who lacks capacity has interests or property abroad or is living in a different country
- Guide to deputyship
Expert Mental Capacity Solicitors
Our specialist team of mental capacity lawyers help to safeguard clients across the UK. Call us today to find out how they can help with your health and welfare, or property and financial affairs.0800 044 8488