The Mental Capacity Act is designed to empower a person’s voice, protect their rights and provide safeguarding measures, alongside direction of practice, if a person is determined to lack capacity for a particular decision at a certain time. In this blog, we explore the role of the Mental Capacity Act around future decisions relating to healthcare, finance and assigning an LPA.
Thinking about the future: advanced decisions and LPA
Under the Mental Capacity Act, a person is empowered with the right to make future decisions while they have capacity, such as for advanced decisions around health care treatment(s) or by assigning Lasting Power of Attorney (LPA) to trusted individual. These processes help ensure that an individual’s personal wishes, beliefs and values are known – in the case of LPA, it also allocates a person or group of people trusted to make decisions on their behalf if they were to lack capacity at some point in the future. We have a range of blogs that discuss these areas in detail.
However, as we have noted many times already in our blogs, the general level of awareness around the role of advanced decisions and LPA continues to be quite poor among members of the public – and even among some health and care professionals. It is therefore really important that ‘future decisions’ (in all their many forms) should not be seen as a taboo subject for fear of what to come or otherwise. Rather, it is far better to have open discussions about these issues to ensure that future wishes are fully understood and adhered to via the appropriate processes.
Financial decisions
While a Mental Capacity Assessment may be needed for an individual to make a recorded advanced decision, or to assign an LPA, there are several other circumstances where an assessment may be needed when it comes to managing finances, such as forming a trust fund, making or changing a will, opening a mortgage, or making a gift of money.
Whatever the case, one must always uphold the five key principles of the Mental Capacity Act, ensuring a presumption of capacity and providing all suitable support to that person so that they can make a decision for themselves. However, if there is either a reasonable belief that a person may lack capacity or that this decision may be challenged in the future, then best practice dictates that a mental capacity assessment for said decision should be carried out by an appropriate professional.
In the legal world, this is often known as the ‘Golden Rule’, providing a safeguarding measure to the decision being made. By which I mean that if the person does indeed have capacity and their decision is challenged in the future, it provides evidence of their capacity at the time of making the decision. This means that the decision arguably holds a greater degree of weight if the assessment if conducted accurately and appropriately in line with best practice guidelines. It would certainly be far preferable to making a retrospective assessment at the point of challenge when an individual lacks capacity.
At this time, it should be noted that requirements for Mental Capacity Assessments for wills continue to follow the Banks v Goodfellow (1870) ruling as shown through Clitheroe v Bond (2021).
Who can help?
Given the importance and potential ramifications of any ‘future decision’, it is essential that they are supported by a Mental Capacity Assessment (where appropriate) to help protect the individual’s rights and ensure their voice is heard.
In these cases, we highly recommend an assessment be carried out by a trained professional, as they will be able to ask all of the appropriate questions and log the assessment in line with best practice guidelines. These may be conducted by specialist assessors, such as ourselves, or through independent registered professionals working in the field.