You may know a family member, friend, neighbour or someone who you think is having difficulties in making decisions about their finance and property or their personal welfare and want to be able make these decisions for them but they have not made an Enduring or Lasting Power of Attorney.

Can the person make the decision with some help?

The Mental Capacity Act says that every adult should be assumed to have capacity to make a particular decision unless it is established that they lack capacity to do so.

Sometimes, even if a person is finding it difficult to make a decision, with the appropriate help and support they may have the capacity to make it. You should therefore make every effort to encourage and support the person and in doing so you should consider:

  • Does the person you believe lack capacity have all the relevant information needed to make the decision? If there is a choice, has information been given on the alternatives?
  • Could the information be explained or presented in a way that is easier for the person to understand? Help should be given to communicate information wherever necessary for example using pictures, photographs, videos, tapes or sign language.
  • Are there particular times of the day, when a person’s understanding is better, or is there a particular place where they feel more at ease and able to make a decision?

It is also important to remember that just because the person makes a different decision from the one you would make or a decision you consider to be unwise does not mean that they lack capacity to make that decision.

When to go to the Court of Protection

Before deciding to make a decision on behalf of someone you must reasonably believe that they lack the capacity to make that particular decision themselves and this will require you to assess their capacity. You are not expected to be an expert in assessing capacity, more information is available in the 'Assessing capacity and best interests' section of our website.

Section 5 of the Act allows anyone who cares for someone who lacks capacity to carry out certain informal tasks without fear of liability. Such tasks may include personal care, healthcare or other treatment provided that is carried out in the best interests of the person who lacks capacity.

In most cases concerning personal welfare matters the principles set out in the Act and chapters 5 and 6 of the Code of Practice will be enough to:

  • help you take action or make decisions in the best interests of someone who lacks capacity; or
  • find ways of settling disagreements about actions or decisions.

However an application to the Court may be necessary for:

  • particularly difficult decisions;
  • disagreements that cannot be resolved any other way; or
  • situations where ongoing personal welfare decisions must be made about someone who lacks capacity.

Also an order from the Court will usually be necessary for matters relating to the property and affairs of people who lack capacity to make specific financial decisions for themselves.

The 'Applying to the Court of Protection' section of the DirectGov website (See the related link menu) gives more details on how to make an application to the Court. You can contact the Court of Protection through their general enquiry line which can be reached on 0300 456 4600.

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