Mental Capacity Act and Court of Protection

The issue of mental capacity can be an area of law fraught with emotions. 

At Judge & Priestley, our experienced Elderly Client team has come across almost all situations and is therefore adept at handling the issue of mental capacity with empathy and sensitivity, while at the same time offering practical advice in your best interests.

What is Mental Capacity?

A person lacks capacity in relation to a matter if, at the relevant time, they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.  The impairment can be either temporary or permanent.

If required to make a decision on a person’s mental capacity the Court will look at whether the person:

  • understands the information relevant to the decision
  • can retain that information
  • can use or weigh that information as part of the process of making a decision, and
  • can communicate their decision (whether by talking, using sign language or any other means)

The Mental Capacity Act 2005

The Mental Capacity Act 2005 sets out five key principles when it comes to ascertaining an individual’s mental capacity.  These include the overriding assumption that a person is assumed to have capacity unless proven otherwise by the individual asserting that capacity is lacking.

Our solicitors can take you through the five principles codified in the Act, in order to make the best decisions for your elderly and/or impaired loved one.

The Court of Protection

The Court of Protection was set up under the Mental Capacity Act 2005.  It has jurisdiction to make decisions as to whether or not a person lacks capacity (or not), appoint or remove deputies and attorneys and make rulings related to Lasting Powers of Attorney and Enduring Powers of Attorney.

We understand that entrusting a Court with decisions regarding people who are extremely vulnerable can be upsetting for some.  We, therefore, endeavour to explain the Court of Protections decision-making procedures fully to family members and we will keep you up to date with developments throughout the process.

If you require information regarding the issue of mental capacity or the Court of Protection then please phone our office on 020 8290 0333 and we would be happy to talk with you.


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