Department for Constitutional AffairsLegal policy

| Legal policy | Family matters | Mental capacity | Guidance | Publications | Useful links | Civil matters | Criminal matters | Legal aid | CFAs and Legal Costs | Advisory bodies | International relations | Coroners and burials

|© Crown Copyright & Disclaimer

Home > Legal policy > Mental capacity > Guidance > Making Decisions: guide for people who wish to prepare for possible future incapacity

Making Decisions: Helping people who have difficulty deciding for themselves

Planning ahead - a guide for people who wish to prepare for possible future incapacity

May 2003



Who is this booklet for?

This particular booklet is designed to help adults (aged 18 and over) who may wish to make preparations for a future time when they may not be able to make their own decisions. This may be because of possible brain injury, dementia, mental health problem or other illness or disability which may affect their capacity to do things for themselves.

The Government has accepted the need for changes in the law to improve and clarify the decision making process for people unable to make decisions for themselves because of impaired Mental incapacity. Making Decisions (published in October 1999) sets out the Government's proposals. But new legislation takes time.

Meanwhile, these information booklets aim to explain the current legal position simply.



Why would I need to plan for the future?

No one knows what the future holds. Most people hope for a long life, even with the knowledge that as they grow older, the possibility of illness and disability increases, including the risk of dementia. Others may not be so lucky - at a young age, they may be involved in a road accident and suffer a brain injury, or have a nervous breakdown or other mental health problem.

There are several measures you can take to prepare for the possibility of future incapacity, to make sure your views are still respected and your wishes followed, even if you are no longer able to make your own decisions or make your wishes known. The preparations you make now for possible future incapacity may never need to be used, but it is important to most people to make their own choices and to remain in control for as long as possible. It can also be both helpful and reassuring for your future carers, and for the people you have chosen to look after your affairs, to have your instructions clearly spelt out for them to follow.



The right to make your own decisions

Every adult has the right to make their own decisions and is assumed to have capacity to do so. However, there may come a time when, through physical or mental frailty or disability, it is no longer possible to remain independent or to manage alone. Some people may need help or support to understand the decision they are being asked to make, to know how to make a choice or to be able to communicate. But the need for help and support does not mean that they cannot make their own decisions.

Very few people, even those with severe disabilities and high support needs, are totally unable to make any decisions. For example, a person with severe brain damage unable to use speech may indicate by their behaviour whether they are happy to see a friend or relative. An older person with dementia may be quite capable of collecting and spending their weekly pension, but may be unable to deal with more complex financial matters, like investments or selling a property.

But even with help and support, some people do lack capacity to make some decisions and actions may need to be taken for them.



What is Mental incapacity?

People are considered to be competent, that is to have capacity, until it is proved that they do not. The law generally looks at the capacity needed by the person to make a particular decision. The courts have decided that in many cases capacity means being able to understand and retain the relevant information and weigh it in the balance to make a choice. This approach is used in a wide range of cases.

As mentioned above, people have varying degrees of capacity. For some, such as people with dementia, their ability to cope may get worse over a long period of time, so the point at which they are no longer able to understand or make a particular decision is hard to pinpoint. For others, for example individuals with mental health problems, their capacity may 'fluctuate', that is, may get better or worse, over a period of time. People suffering from fluctuating or temporary incapacity may be able to plan for periods of incapacity in advance by making an enduring power of attorney or other arrangements (see below).

In considering what people are capable of doing and which decisions or actions need to be taken on their behalf an assessment must be made in each case, for every particular decision. For more serious or complicated decisions, it may be necessary for a doctor or other professional to give an assessment of the person's capacity. Further information on assessment of capacity can be found in other booklets in this series, in particular A Guide for Family and Friends.

Who can assess capacity?

If you are worried about your ability to make decisions, or have been diagnosed as having a medical condition (such as Alzheimer's Disease) that may affect your ability to make decisions in the future, you can get help from a variety of sources, depending on your particular situation.

Your family doctor (GP) should be able to advise on how your medical condition is likely to affect your ability to make decisions in the future. Your doctor can also assess your capacity.

In legal matters or transactions, such as making a will or an Enduring Power of Attorney (EPA), the solicitor dealing with it will need to be satisfied that you have the necessary capacity to understand what the matter is about. The solicitor will get an opinion from a doctor or a psychiatrist on your capacity, if he or she thinks it is necessary.

Where consent is needed for medical treatment or an examination, the doctor or healthcare professional suggesting the treatment should decide whether you have the capacity to consent or to refuse consent.

Advice agencies or voluntary organisations may have relevant information or may be able to suggest sources of expert help or advice.

What decisions can be made on my behalf if I do not have capacity?

There are special rules for financial and healthcare decisions and arrangements for some decisions can be made in advance (see below).

However, generally the law allows basic day-to-day actions to be taken by another person, such as a family member, carer or social care professional, on your behalf, simply to be able to look after your welfare. For example, dressing, bathing or feeding you while you are in residential care or living at home or buying your shopping or paying your bills. This is called the doctrine of necessity'.

In all cases the person taking these day-to-day actions should act in your 'best interests'.

What is 'best interests'?

Best interests means that the known wishes and beliefs and general well being of the person who has lost capacity must be taken into account. In relation to medical treatment, the courts have said that the person's 'values and preferences when competent (that is, capable), their well-being and quality of life, relationships with family and other carers, spiritual and religious welfare and their financial interests' must be taken into account - not just what might be best for their physical health.

These principles are often adopted for other types of decisions and actions that need to be made or taken on someone's behalf, not just for healthcare.



Making financial decisions

How can I give authority to others to manage financial decisions?

You can make arrangements in advance for financial arrangements as long as you have the necessary Mental incapacity to do so.

If you do not own property, and your only income is from social security benefits or pensions, it may not be necessary for you to make arrangements for your money to be dealt with after you lose capacity. The Department for Work and Pensions (DWP) can appoint someone (called an appointee) to take over your claim for benefits. This allows someone to receive your payments and spend the money on your behalf. This will normally be a close relative or carer, but you may not have any say on who is appointed.

You can:

All of the above arrangements need your authorisation, in writing, and allow you to choose who you wish to authorise and how much authority you want to give them. However, some of these stop being legally valid once you lose the capacity to manage your own affairs, such as the authority to act as agent to collect benefits. You need to check this before you put these arrangements in place.

These informal arrangements can often work very well and are simple to set up and operate. But they have some disadvantages. There is no formal supervision of these arrangements, no periodic scrutiny or monitoring, and as with anything which relies on trust, things can go badly wrong if the people chosen turn out not to be trustworthy. As a general rule, more formal measures provide greater safeguards against possible abuse.

A more formal way of delegating financial decisions is to make an enduring power of attorney (EPA).

What is an enduring power of attorney (EPA)?

This is a form of deed that enables you (known as the 'donor'), while still mentally capable, to appoint someone else - a friend, relative or professional - to manage your financial affairs on your behalf. This person is known as an attorney, and can be a friend, relative or a professional. More than one attorney can be appointed to act. You can choose for the attorney(s) to:

In both cases the power should be registered with the PGO when you lose Mental incapacity to manage your own property and affairs.

At the time of making the EPA, you must be able to understand what you are authorising the attorney to do, and that the attorney's powers will continue after you lose capacity to manage your own affairs.

The Court of Protection protects and manages the property and financial affairs of people with impaired Mental incapacity and can revoke (stop) the power if it is being used incorrectly. The Public Guardianship Office (PGO) is the administrative office that supports the Court of Protection.

The Public Guardianship Office publishes a number of free booklets on EPAs and will give advice and information about making them.

Do I need a solicitor to make an EPA?

An EPA is made simply by completing the correct statutory form - which you can get from the Stationery Office website, legal stationers or from a solicitor. However, if you use the wrong form, or do not complete it correctly, the EPA will be invalid. Most of the EPA forms, and information about making an EPA are available on the Public Guardianship Office website. There is also a link to the Stationery Office website.

While it is not essential to get a solicitor to help you complete the form, this may be advisable if your affairs are at all complicated. Solicitors' charges vary, and some may offer to prepare an EPA as part of a package of work involved in making a will.

What happens to the EPA if I lose capacity?

As soon as your attorney(s) believe you have become, or are becoming, mentally incapable of managing your own affairs, they must register the EPA with the Public Guardianship Office. If the EPA is not registered, it will stop being valid as soon as you lose capacity.

The attorney(s) must notify you and three of your closest relatives that they are applying for the EPA to be registered, and everyone notified has the right to object if they think the application is premature, or the attorney is unsuitable. A fee is payable to the Public Guardianship Office for registering the EPA which the attorney will pay out of your money. If you have limited assets, your attorney can apply to the Public Guardianship Office for part of the fee to be 'remitted' (reduced).

What happens after the EPA is registered?

Once it is registered, the attorney can take over the handling of your property and affairs as authorised by you in the EPA document. You can no longer make financial decisions for yourself, although it will always be good practice for the attorney to involve and consult you so far as possible. But the attorney will not be supervised unless you have made prior arrangements for this in your EPA form. For example you could request that your attorney(s) send annual accounts to another person or professional of your choice.

The Public Guardianship Office can be asked to investigate any concerns about the way in which an attorney is using their powers under an EPA. Any serious problems will be referred to the Court of Protection. The Court has power to call for accounts from an attorney and can remove the attorney if concerns prove to be justified.

What if I don't make an EPA?

If you do not own property, and your only income is from social security benefits or pensions, the Department for Work and Pensions (DWP) can appoint someone (called an appointee) to take over your claim for benefits. This allows them to make a claim, receive your payments and spend the money on your behalf. The DWP can appoint anyone involved in your care but will usually give preference to an agent nominated by you before you lost capacity

If you have property or assets other than social security benefits, and have not made an EPA, no one has authority to deal with your financial affairs unless an application is made to the Court of Protection for someone to be appointed on your behalf.

What will the Court of Protection do?

Depending on the circumstances, the court may make an order, called a 'short order', authorising someone to do whatever needs to be done to deal with your money. This is usually when the value of everything you own is limited and there is no property to be sold.

If your affairs are more complicated or extensive, the Court will appoint a 'receiver' which can be either a family member or a professional person, such as a solicitor or accountant or the Director of Social Services. If there is no-one willing or able to act as receiver, the Court can appoint a receiver from an approved panel. The order made by the Court will set out the receiver's duties to manage all your financial interests and the PGO will monitor and supervise the order on behalf of the Court. Annual fees are payable to the court for this.

The Court will need medical evidence that because of mental disorder you are incapable of managing your own affairs and details of the extent of your property and affairs.

The Court of Protection can only deal with property and financial affairs, not with personal or healthcare decisions.

You can get more information and advice about these applications and what needs to be done from the Public Guardianship Office, including free information booklets.

Are there any disadvantages in having the Court of Protection appointing someone to manage my financial affairs?

There are two main disadvantages to leaving matters to the Court of Protection:

But, there may be some advantages. For example, if you have extensive assets, regular monitoring by the Court may help to ensure that these are being managed properly. If there is a risk of conflict amongst members of your family, for example about who should be appointed, it may be appropriate for the Court to appoint a professional receiver who is independent of the family.



Making healthcare decisions

No one (not even husbands or wives, partners, close relatives, professional carers or independent advocates) can legally give or withhold consent to medical treatment on your behalf.

An attorney acting under an EPA, a receiver or anyone else appointed by the Court of Protection has no right to make decisions about your personal care or welfare, or about healthcare or treatment. But, being in control of someone's money may mean that the attorney will often be involved in, or consulted about, these decisions, for example payment of nursing home fees.

What happens then?

Healthcare professionals can and should provide treatment without consent if you lack capacity to consent yourself, if they consider it to be clinically necessary and in your best interests.

Healthcare professionals (doctors, nurses and therapists) should always consult people close to you to agree the best course of action or treatment, unless you have made clear in the past that you would not want a particular individual involved. The person caring for you should never be asked to sign a consent form on your behalf, but he or she may be asked to sign a form to say that they have been consulted about your best interests.

Can I make plans in advance about future healthcare?

Yes. While you still have capacity, you can state your wishes and aspirations for a future time when you may have lost capacity. This is known as an 'advance statement', 'advance directive' or 'living will'.

It is important to remember that your views may change over time, dependent on your personal circumstances, health or frame of mind. It is up to you to make sure that any advance statement reflects your current wishes.

An advance statement should be kept safe. It is advisable to lodge a copy with your doctor, solicitor or with anyone who might care for you if you lose capacity.

Before deciding whether to make an advance statement you should consider discussing this with your family, close friends and anyone else whose opinion you respect, such as a religious or community leader. You may also want to talk to your doctor or another healthcare professional. Various organisations, also offer advice about any benefits and disadvantages of making one.

What can advance statements include?

There are various types of advance statements:

Advance statements can be a combination of all of the above.

Are they legally binding?

Only in certain circumstances. Advance directives refusing treatment, are legally binding, even if carers and relatives or healthcare professionals disagree with it, as long as:

However, a contemporaneous, competent decision always overrides an advance directive.

Requesting statements and general statements of preference should be respected by healthcare professionals, if appropriate, and taken into account in deciding what is in your best interests, but they are not legally binding.

Remember, if you decide to make an advance statement, you may change your mind about what you have requested in an advance statement or directive. You should make sure that it is updated regularly.

What if there is a disagreement about capacity or best interests?

Usually agreement can be reached between healthcare professionals and people close to you about whether you have the capacity to make a particular decision or what would be in your best interests. If this isn't possible or everyone involved cannot agree, anyone involved - a relative, partner, carer, a healthcare professional or any other person with a legitimate interest - can ask the High Court to decide what would be in your best interests.

For example the court can be asked to decide about healthcare, such as whether you should have certain types of irreversible treatment. The court can also be asked to decide about your personal welfare, such as where you should live or whether you should have contact with other family members.

The Court will want to take into account any information you may have provided in advance, in order to make a decision that is in your best interests.



What happens if I recover capacity to manage my own affairs?

If you have made an EPA that has been registered, or have a receiver appointed by the Court of Protection, you cannot regain control of your own affairs without the agreement of the Court of Protection.

If you recover the capacity to manage your own affairs, you must apply to the Court of Protection for an order to revoke (stop) the EPA or to remove the receivership. The Court will need medical evidence that you no longer have a mental disorder that makes you incapable of managing your own affairs. Notice will have to be given by you (or your solicitor) to banks, solicitors and other organisations that the EPA or Court of Protection Order has been revoked (stopped) and you are taking back the management of your financial affairs.



Combating abuse, neglect or exploitation

While the vast majority of carers and others involved in the care of vulnerable people are entirely trustworthy, it is important to be aware of the possibility of abuse and to set up safeguards in advance so that abuse can be avoided, or speedily detected and dealt with.

You can help to prevent abuse by:



Useful organisations

Below is a table detailing a number of useful organisations, and the areas in which they may be able to help you:

Organisation What it is/does Contact Details
Action on Elder Abuse Provides a confidential helpline service for anyone concerned with the abuse of older people and emotional support for those involved. Astral House
1268 London Road
London SW16 4ER

Freephone Helpline:
0880 8808 8042
www.elderabuse.org.uk
Age Concern Provides national information line for older people and their concerns. Age Concern England
Astral House
1268 London Road
London SW16 4ER

Tel: 020 8765 7200
www.ageconcern.org.uk
Alert Campaigns against legalised euthanasia. Provides information on matters relating to Living Wills, Advance Directives and Motor Neurone Disease. 27 Walpole Street
London SW3 4QS

Tel: 020 7730 2800
www.donoharm.org.uk
Alzheimer's Society Leading care and research charity for people with all forms of dementia, their families and carers. Gordon House
10 Green Coat Place
London SW1P 1PH

Helpline: 0845 300 0336
www.alzheimers.org.uk
CARERS UK Looks after family, partners or friends in need of help because they are ill, frail or have a disability Ruth Pitter House
20/25 Glasshouse Yard London EC1A 4JT

CarersLine 0808 808 7777
020 7490 8824
www.carersonline.org.uk
Citizen Advocacy Information and Training Provides basic and practical advice about citizen advocacy groups in the initial stages of setting up schemes. Runs training days and gives support to existing citizen advocacy schemes. Unit 164
Lee Valley Technopark
Ashley Road
London N17 9LN

020 8880 4545
www.citizenadvocacy.org.uk
Contact the Elderly National charity organising gatherings for frail elderly people who live alone. Volunteer groups throughout the UK. 15 Henrietta Street
Covent Garden
London WC2E 8QG

Freephone: 0800 716543
www.contact-the-elderly.org
Counsel and Care Provides a confidential and free advisory service for people over 60. Gives expert advice about welfare benefits and financial help where possible towards essential care. Twyman House
16 Bonny Street
London NW1 9PG

Helpline: 0845 300 7585
www.counselandcare.org.uk
Court of Protection   See Public Guardianship Office
Dementia Care Trust Offers information and phone advice; running carers' support groups; educating the public and professionals; running day care, counselling and relief caring services Kingsley House
Greenbank Road
Bristol BS5 6HE

0870 443 5325
0117 952 5325
www.dct.org.uk
Down's Syndrome Association Offers help for people with down's syndrome 155 Mitcham Road
London SW17 9PG

020 8682 4001
www.downs-syndrome.org.uk
Foundation for People with Learning Disabilities Works with people with learning disabilities to improve the quality of their lives. 7th Floor
83 Victoria Street
London SW1H 0HW

020 7802 0300
www.learningdisabilities.org.uk
General Medical Council Charity whose purpose is the protection, promotion and maintenance of the health and safety of the community. Statutory body which sets and monitors professional standards for doctors. 178 Great Portland Street
London W1W 5JE

General Enquiries Desk:
020 7580 7642
www.gmc-uk.org
Headway - brain injury association Sets up self-help and support groups; providing information, publicity and booklets on patients' problems, and help for families. 4 King Edward Court
King Edward Street Nottingham NG1 1EW

Helpline: 0808 800 2244
0115 924 0800 (Nottingham)
020 7841 0240 (London)
www.headway.org.uk
Help the Aged Promotes and develops practical programmes by identifying needs, raising public awareness and fundraising. Offers free advice through Senior Line and via information leaflets. St Jame's Walk
Clerkenwell Green
London EC1R 0BE

Free welfare rights adviceline: 0808 800 6565
www.helptheaged.org.uk
Help the Hospices Hospice Information provides an information service for health professionals and members of the public. Hospice House
34 - 44 Britannia Street
London WC1X 9JG

Helpline: 0879 903 3 903
www.hospiceinformation.info
Linacre Centre for Healthcare Ethics Catholic bioethics centre producing academic and other material on a range of issues in healthcare, including euthanasia and the withholding and withdrawing of treatment and care. Also provides advice to individual health practitioners on ethical aspects of their work. 60 Grove End Road
London NW8 9NH

020 7806 4088
www.linacre.org
Manic Depression Fellowship Runs a nation-wide network of 147 self-help groups organised by people with manic depression and their families and friends. Castle Works
21 St Georges Road
London SE1 6ES

020 7793 2600
www.mdf.org.uk
MedicAlert Foundation Non-profit making, registered charity providing a life saving identification system for individuals with hidden medical conditions and allergies. 1 Bridge Wharf
156 Caledonian Road
London N1 9UU

Tel: 0800 581 420
www.medicalert.org.uk
MENCAP Offers support for people with a learning disability and their families. Provides specialist information, homes, leisure activities and further education for people and young adults with learning disabilities. 123 Golden Lane
London EC1Y 0RT

Helpline: 0808 808 1111
Tel: 020 7454 0454
www.mencap.org.uk
Mind (National Association for Mental Health) Leading mental health charity in England and Wales - works for a better life for everyone with experience of mental distress. 15-19 Broadway
Stratford
London E15 4BQ

020 8519 2122
Mindinfoline: 08457 660 163
www.mind.org.uk
Motor Neurone Disease Association Independent charity that offers support to people with Motor Neurone Disease and those who care for them. PO Box 246
Northampton NN1 2P2

Tel: 01604 250505
Helpline: 08457 626262
www.mndassociation.org.uk
National Autistic Society Leading UK charity providing information and support for people with autism spectrum disorders and their families, also provides information for professionals and journalists. 393 City Road
London
EC1V 1NG

020 7833 2299
Helpline: 0870 600 85 85
www.nas.org.uk
Official Solicitor Provides representation for minors or adults under legal disability in county court or High Court proceedings in England and Wales. Protects best interests and human rights of those who are unable to represent themselves in legal process. 81 Chancery Lane
London
WC2A 1DD

Tel: 020 7911 7127
http://www.officialsolicitor.gov.uk/
Patient's Association Provides help and advice to patients and campaigns for change. PO Box 935
Harrow
Middlesex HA1 3YJ

Tel: 020 8423 9119
Helpline: 0845 608 4455
Patient Concern Committed to promoting choice and empowerment for all health service users. Special advisers and supporters contribute their time, expertise and experience free of charge. PO Box 23732
London SW5 9FY

Tel: 020 7373 0794
www.patientconcern.org.uk
The Prevention of Professional Abuse Network POPAN Helps people abused by health or social care professionals. Providing information, support, and advocacy. Preventing abuse through training and awareness raising and development of policy and research. 1 Wyvil Court
Wyvil Road
London SW8 2TG

020 7622 6334
Support line: 0845 4 500 300
www.popan.org.uk
Public Guardianship Office Provides financial protection services for clients who are not able to manage their financial affairs because of Mental incapacity. Supports the families and advisers of the person who is incapable Archway Tower
2 Junction Road
London N19 5SZ

Customer service helpline 0845 330 2900
Enquiry Line: 0845 330 2900 / www.guardianship.gov.uk
Relatives and Residents Association* Help with finding the right care home and costs. Practical advice for anyone with an elderly relative or friend living in a home or long-stay hospital. 5 Tavistock Place
London WC1H 9SW

Adviceline: 020 7916 6055
www.relres.org.uk
RESCARE (The National Society for mentally disabled people in residential care) Provides information, advice and support to families including guidance and help through legal advice. Rayner House
23 Higher Hillgate
Stockport SK1 3ER

Tel: 0161 474 7323
www.rescare.org.uk
Respond Runs a national helpline for people with learning disabilities, professionals and carers, dealing with the issues of abuse and abusing Third Floor
24-32 Stephenson Way
London NW1 2HD

Helpline 0808 808 0700
www.respond.org.uk
Rethink (formerly National Schizophrenia Fellowship) Charity for people who experience severe mental illness and for those who care for them. 17 Oxford Street
Southampton SO14 3DJ

General Enquiries: 0845 456 0455
Advice Line: 020 8974 6814
www.rethink.org
SANE Runs an out of hours phone helpline, giving information on all forms of mental illness and offering support to suffers, their friends and families and professionals. 1st Floor Cityside House
40 Alder Street
London E1 1EE

Helpline: 0845 767 8000
www.sane.org.uk
Scope (Major disability charity with a focus on cerebral palsy) Provides a wide variety of services for disabled people including accommodation, educational and training facilities, and fieldwork support for disabled people and their families. 6 Market Road
London N7 9PW

020 7619 7257
Cerebral Palsy Helpline:
0808 800 3333
www.scope.org.uk
Speakability Supports people living with aphasia and their carers. 1 Royal Street
London SE1 7LL

020 7261 9572
Helpline: 080 8808 9572
www.speakability.org.uk
Solicitors for the Elderly An interest group led by solicitors for practitioners committed to providing and promoting a comprehensive range of high quality legal services for older people, their family and carers. PO Box 9
Peterborough PE4 7NN

Tel: 01733 326769
www.solicitorsfortheelderly.com
Stroke Association Provides practical support for people who have had strokes, their families and carers. Stroke House
240 City Road
London EC1V 2PR

020 7566 0300
Helpline: 0845 30 33 100
www.stroke.org.uk
Values into Action Research and campaigning organisation dedicated to the human and civil rights of people with learning difficulties. Oxford House
Derbyshire Street
London E2 6HG

Tel: 020 7729 5436
www.viauk.org
VOICE UK Support and action group for people with learning disabilities who have been abused. Puts people in touch with counsellors and other professionals and providing counseling, legal advice, training, support and mediation. PO Box 238
Derby DE1 9NJ
The College Business Centre
Uttoxeter New Road
Derby DE22 3WZ

Tel: 0870 013 3965
www.voiceuk.clara.net
Voluntary Euthanasia Society Provides advice on making an Advance Directive. 13 Prince of Wales Terrace
London W8 5PG

Tel: 020 7937 7770
www.ves.org.uk

 


© Crown Copyright