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This fact sheet will give you some basic information about the Mental Capacity Act. You can also listen to it online or download it onto an MP3 player.

Please be aware that this is not legal advice and if you are concerned about any of the issues mentioned you should speak to a lawyer.

You can contact Russell Jones & Walker's solicitors at enquiries@rjw.co.uk or call our freephone number 0800 916 9065.

• What is the Mental Capacity Act?
• What sort of decisions does the Act apply to?
• Who does the Act apply to?
• Who decides if I lack mental capacity to make a particular decision?
• How will decisions be made?
• How do I plan ahead?
• What if I don't nominate someone to help me?
• Can I specify that I don't want a particular treatment in future?
• How will my best interests be protected?
• Where can I get more information?

What is the Mental Capacity Act?

"Mental capacity" means being able to make your own decisions. The Mental Capacity Act will help people to make their own decisions and protect people who cannot make their own decisions about some things.

It also enables people to plan for a time when they may be unable to make decisions for themselves.

The Act tells people:

• How to help someone make their own decision about something
• How to work out if someone can make their own decision about something
• What to do if someone cannot make their own decision about something.

What sort of decisions does the Act apply to?

The Mental Capacity Act will help people to make their own decisions and protect people who cannot make their own decisions about some things.

It can apply to all sorts of decisions, including

• major ones about money, social care or medical treatment or
• everyday ones, such as what to wear or eat.
However, some types of decision can never be made by another person on your behalf, including
• whether to get married, divorced or make a civil partnership
• whether to have sex
• placing a child for adoption or
• who to vote for in an election.

Who does the Act apply to?

It applies to anyone over the age of 16 in England and Wales. It protects people with mental health problems, including those with dementia, learning disabilities, stroke or brain injuries. The Act sets out in law what will happen if you are unable make a particular decision.

Who decides if I lack mental capacity to make a particular decision?

The law says everyone should be regarded as able to make their own decisions until it is shown that they can't.

Whether you are able to make a particular decision will be established when that decision needs to be made.

Anyone can assess your capacity - for everyday decisions, this is likely to be a relative. Professionals like doctors or lawyers are more likely to assess your capacity for more complicated decisions.

There is a code of practice setting out how certain people, including medical and social care professionals, should act if they are supporting someone who lacks capacity.

No-one can assume you lack capacity because of

• how old you are
• how you look
• how you behave
And no-one can assume you cannot make the decision yourself just because
• you have a disability
• you can�??t make more complicated decisions
• you have not been able to take decisions like this in the past.

How will decisions be made?

You should get all the help and support you need to be able to make your own decisions. Sometimes this might mean you are unable to take a particular decision at a particular time, but you might be able to later on.

You shouldn�??t be prevented from making a decision just because someone else thinks it is wrong or bad.

There is a checklist to make sure that when someone else takes a decision for you it is in your best interests.

How do I plan ahead?

You do this by using a Lasting Power of Attorney to appoint someone to make decisions on your behalf. This includes decisions about property, money, health and welfare. You can only make this legal document if you understand what it means.

This replaces an Enduring Power of Attorney, which only covered decisions about property and money. If you made one of these before October 2007 it can still be used.

What if I don't nominate someone to help me?

If you have not made a Lasting Power of Attorney, a new Court of Protection can make someone a deputy to make decisions for you if you cannot decide everything yourself.

If you don't have any family or friends, there is also a new Independent Mental Capacity Advocate to help when you have to make important decisions about health, social or housing services.

Can I specify that I don't want a particular treatment in future?

Someone with mental capacity can make an advance decision to refuse treatment. This is when you specify a particular treatment you want to refuse and when you want to refuse it, in case you lack capacity in future.

A doctor must respect this decision. The only exceptions to this are decisions about compulsory detention or treatment for a mental disorder.

You can make an advance decision from October 2007.

How will my best interests be protected?

From October 2007, the new Court of Protection will help you when you cannot say or decide what to do. It can make a final decision about whether you lack capacity, as well as important decisions on your behalf, particularly if people cannot agree on what is best.

Also from October 2007, the new Public Guardian will oversee Lasting and Enduring Powers of Attorney and make sure deputies are doing their jobs properly.

It is also a criminal offence to treat badly or deliberately neglect someone who lacks capacity.

Where can I get more information?

You can download information booklets from the Ministry of Justice website - justice.gov.uk - or from the Public Guardianship Office guardianship.gov.uk or on 0845 330 2900.