What happens when a person becomes incapable of making these decisions for themselves?

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The average adult makes a staggering 35,000 decisions every day. We are accustomed to making choices and decisions throughout our lives - ranging from the smallest things - like what to have for breakfast - to life-changing choices, such as where to live or how to invest your money.  But what happens when a person becomes incapable of making these decisions for themselves?

The loss of mental capacity

Tragic accidents or unfortunate instances of ill health can cause a sudden loss of mental capacity for even those with the soundest cognitive ability and sharpest minds. The inability to make your own decisions can have serious repercussions on your health and entire future. As difficult as these situations are to think about, it is imperative to make necessary arrangements ahead of time to avoid losing total control of your life. 


How to define ‘mental capacity’?


Mental Capacity is the ability to make and communicate your own decisions. Someone of sound mental capacity will understand the information relevant to the decision, retain that information, and use or weigh up that information as part of the process of making the decision. 


People may lack mental capacity if they can’t:


  • Understand or process information related to a particular decision

  • Remember the information for long enough to make the decision

  • Weigh up and consider all factors relevant to the decision

  • Communicate their decision clearly


Some of the causes for people to lack mental capacity include dementia, brain injury, mental health illness, stroke, severe learning disability or unconsciousness. It is important to recognize that not everyone lacking the ability to make some decisions is incapable of making any decisions. For example, someone living with a learning disability may be unable to make medical or financial decisions, but may still be capable of making simpler choices, like what to eat and how to dress. Mental health conditions can be irregular, causing scattered or isolated loss of mental capacity. Other conditions, like dementia, may have an increasing effect on a person’s mental capacity as the disease progresses. 


Besides for ascertaining the scope of the incapacity, it is also important to define whether it is caused by something permanent - like brain injury, or long term health condition - or something temporary, like substance abuse or unconsciousness.


The Mental Capacity Act (MCA)


The Mental Capacity Act was introduced with the primary purpose of defining a legal framework for identifying those lacking mental capacity, and making decisions on their behalf. It applies to any person over the age of 16 and acts as a protective measure for their welfare when they are at their most vulnerable.


The MCA says:

  • Assume a person has the capacity to make a decision themselves, unless it is proved otherwise

  • Wherever possible, help people to make their own decisions

  • Do not treat a person as lacking the capacity to make a decision just because they make an unwise decision

  • If you make a decision for someone who does not have capacity, it must be in their best interests

  • Treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms


Implementation of MCA in care homes


It is the responsibility of any care home or facility to uphold the values and guidelines of the MCA. When choosing an appropriate facility for yourself or your loved ones, it’s crucial to ensure that this is a facility that promotes your right to make your own decisions, or at least will act in accordance with your best interest in a case where you may be unable to make decisions for yourself. You should be looking for an institution that will customize your care plan to cater to your specific requirements, rather than practising a one-size-fits-all policy. This means that the staff will include you as much as possible in all decision making and ensure you have all the relevant information you need to do so. Before becoming a resident at a care home, it’s important to create a care plan together with the staff to ensure that your lifestyle will be in line with your personal preferences and aspirations even at a stage when you may lack the mental capacity to facilitate this yourself. This care plan can include big decisions, like which medication to administer and end-of-life care, and little details, like your personal comforts and preferred routines. Most importantly, care home staff should be adhering to the legal framework for your care - for example, consulting with the agent granted with power of attorney rather than making assumptions about your best interests themselves. 

Precautionary Measures


As mentioned above, tragedy can strike suddenly and unexpectedly, which is why it's important to plan ahead and put measures in place that will prevent you from losing total control over your care. One of the most effective ways to do this is to register a Lasting Power of Attorney. 


Lasting Power of Attorney (LPA)


Many people assume that if they become incapacitated, they can rely on their family members to make important decisions for them. However, this is simply incorrect. In order to make decisions regarding your health, welfare, property or financial affairs, the family member (or other person you trust) must be formally registered as having Power of Attorney for your affairs (each of which category must be documented individually). You can appoint anyone over the age of 18 to this role, providing you are of sound mental capacity at the time. Their power will only come into effect once you are deemed to have lost capacity. It is the responsibility of the person acting as attorney to ensure the statutory principles of the MCA are followed at all times. They are also required to check whether you have the capacity to make each decision as it arises rather than assuming that you are incapable in every instance.


When setting up an LPA, is it advisable to speak to your local Citizens Advice Bureau or a practicing solicitor in order to ensure everything is carried out correctly and in accordance with the legal specifications. Contact the Office of the Public Guardian to receive relevant forms and information packs either in person or online.


Advance decisions


Another precautionary measure you can take to secure your future is to make advance decisions to refuse certain treatments in the future (as long as you are aged 18 and over). These decisions are legally binding unless in a case where you are detained under the Mental Health Act. If this advance decision refuses life sustaining treatment it must be in writing, signed and witnessed and state clearly that the decision applies even if life is at risk. If you do decide to make such a drastic and important decision, it is advisable to inform your family, friends or healthcare team about this so that they are aware of your wishes in advance.


Advance Statement


This written statement is not legally binding like the first two, but is nevertheless useful for friends, relatives and medical staff to use as a guide when they need to make decisions on your behalf. The statement can include anything from your religious and spiritual beliefs, and how they should be reflected in your care, to your general wishes and concerns, like whether you prefer showers or baths and who should mind your pet if you become ill. It may also concern important issues like your preferred choice of care - home, hospital, hospice or nursing home.

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