Mental capacity and deputies

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Easy Read Guide to Mental Capacity and Planning for the Future

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While you have capacity you have the right to make decisions about your treatment and care. You can decide if you want to consent to or refuse treatment or care. Even if doing so may shorten your life or put you at risk.

If you lack capacity to decide, the professional in charge of your care will decide how to treat you. They must make decisions based on what they think would be in your best interests. But there is no guarantee that this would be what you would choose for yourself.

The Mental Capacity Act 2005 sets out a range of ways by which people can plan for a time when they are no longer able to make decisions for themselves.

The following sections will direct you to further information about these provisions. It also contains useful information to help you plan for the future.

What is capacity?

Capacity is the ability to make a decision for yourself. Your capacity to make a decision depends on when the decision needs to take place, and what the decision is.

You might lack capacity to make a decision on one day but be able to make that decision at a later date. This can be the case if you have dementia, and your memory capacity changes from one day to the next.

You might also have capacity to make some decisions but not others. For example, you might have capacity to decide what you want to eat each day, but not to make a decision about life-sustaining treatment.

The law says that people must be assumed to have capacity unless it is proven otherwise.

How does someone decide what is in my best interests?

If you lack capacity to make a decision then someone may have to make that decision for you. This could be a doctor, social worker or social care professional depending on what decision needed to be made. If this happens they have to act in your best interests.

A best interests decision is based on your values, beliefs and preferences. Where possible it should be the decision you would make for yourself if you could.

If someone lacks mental capacity

You can apply to become someone’s deputy if they ‘lack mental capacity’. This means they cannot make a decision for themselves at the time it needs to be made. They may still be able to make decisions for themselves at certain times.

People may lack mental capacity because, for example:

they’ve had a serious brain injury or illness
they have dementia
they have severe learning disabilities

As a deputy, you’ll have authorisation by the Court of Protection to make decisions on their behalf.

There are two types of deputy.

Property and financial affairs deputy

You’ll do things like pay the person’s bills or organise their pension.

Personal welfare deputy

You’ll make decisions about medical treatment and how someone is looked after.

Find out more about becoming a deputy on the Government website page ‘Becoming a deputy’.

Applying for the right to deal with the benefits

You can apply for the right to deal with the benefits of someone who cannot manage their own affairs. This could be because they lack the capacity to do so or have a disability.

To find out more visit the Department for Work and Pensions Website.

What is ReSPECT?

ReSPECT stands for Recommended Summary Plan for Emergency Care and Treatment.

The ReSPECT process creates a personalised recommendation for your clinical care in emergency situations where you are not able to make decisions or express your wishes.

This plan can be for anyone, but will have increasing relevance for people who have complex health needs, people who are likely to be nearing the end of their lives, and people who are at risk of sudden deterioration or cardiac arrest.

Some people will want to record their care and treatment preferences for other reasons. You can find out more on the Resuscitation Council UK website.