Mental capacity: information for family, friends and carers

How can I be sure someone can make their own decisions?

You can suggest that they ask their doctor or other medical professional to assess their mental capacity. If they won’t do this and you have the same GP practice, talk to your doctor about your concerns and options. You can also approach someone else who knows the person well and may be willing to talk to them about getting help.

You must check that a person has mental capacity to make a decision at the time it needs to be made. They can make the decision if they can:

• understand the information they need - for example, what the consequences will be.
• remember the information for long enough to make the decision.
• weigh up the options and make a choice.
• communicate their decision in any way - for example, by blinking or squeezing a hand.

You cannot decide a person lacks mental capacity because you think they’ve made a bad or strange decision.

If the person cannot make a decision at a certain time, they may still be able to make it at another time, or they may be able to make decisions about other things.

Do not make a decision for them if it can wait until they can do it themselves.

You can get more advice about this from the Government website.

Gov.UK: Checking mental capacity.

Talking about this can be a difficult conversation. Independent Age has advice on talking about mental capacity – when to talk, how to start a conversation, the responsibilities for a Power of Attorney or Deputy, and how to look at the options.

Independent Age: Talking about... who will make decisions.

Helping someone to make a decision.

There are ways you can help someone to make a decision.

You can give them more time to make a decision, or give them information in a different format that helps them to understand it, consider the options and make a decision. Sometimes the person may find it useful to read the information a number of times over a number of days. Or they could prefer to listen to the information as it read out. Or they may find it useful to have information in an easy read format, using pictures to help to understand the words.

The person may also find it useful to write down what they think and what they have decided they want to happen. This can help if their condition changes (if they have good and bad times) so later they can read what they thought before and wanted to happen. This can be their day to day likes such as the food they like to eat and the types of activities they like to do.

They can also choose people who know them well and can help them when they find it difficult to make a decision. The person they choose would not have the power decide for them, but can give information about what the person likes because they know them well.

This can help if the person has different people who support them at different times (like home care workers) or if the person is going into hospital. Sheffield Teaching Hospitals have a booklet called All About Me that can help the person to write down what they like and what is important to them, and how they communicate.

Sheffield Teaching Hospitals: All About Me (PDF, 94 KB).

There is also an Alzheimer’s Society leaflet that helps anyone with dementia or other communication difficulties easily share personal information with others.

Alzheimer’s Society: This is me (PDF, 522 KB).

There is also information below about planning for the future, where the person can write down what they would like to happen with their finances and end-of-life care and support.

The person can have an advocate who can help them to understand information and their options, and help them to tell people what the person thinks and what they have decided. There is also self-advocacy, where the person gets support to build their skills and confidence so they can speak up, understand their rights and make decisions about their life. Sometimes a group of people will join together as a self-advocacy group so they can support each other to make decisions.

The Sheffield Advocacy Hub website has information about the different support available including an Independent Mental Capacity Advocate.

Sheffield Advocacy Hub: Independent Mental Capacity Advocacy.

If the person needs help to manage their money, they can get help from a relative or friend, or help from an organisation that helps them to pay bills or claim benefits and talk to the Department for Work and Pensions (DWP). If the person has no relatives or friends that can help with this the Council may support them if they have limited capital and only get benefits and state pension. You can get more information about these options on the directory.

Support with managing your money.

If you would like more detailed advice on supporting someone who lacks mental capacity to manage some aspect of their own money there is a guidance available from the Social Care Institute for Excellence (SCIE) and the Association for Real Change (ARC).

ARC works to improve health and social care for people with a learning disability or other support needs like autism, mental health problems, sensory and physical disabilities. The guide is written for professionals but has lots of useful advice on mental capacity when supporting someone to manage their money.

Association for Real Change: Guidance on money management for people who may lack capacity to make some decisions about how their money is used (PDF, 564 KB).

 Advanced care planning.

If you want to help someone prepare for a time when they may not be able to make their own decisions, you can help them make an advanced care plan, sometimes called an advance statement. This tells people what the person wants to happen for their future care like where they would like to die, their spiritual beliefs and choice of ceremony. There’s more information about this on the directory.

Palliative and end of life care.

Making decisions for someone.

If someone wants you to have the power to make decisions for them there is a legal process to create a document called a Lasting Power of Attorney. You can have legal power for their health and welfare, or their finances and property, or both. Doing this while the person has mental capacity may be easier and cheaper, as the process to be allowed to make decisions for someone who lacks mental capacity (called being a Deputy) is more complex and costly. There is more information about being a Deputy below.

To be an attorney you must be over 18 years of age and have mental capacity. You cannot be an attorney for property and financial affairs if you have a Debt Relief Order (a way to write-off debts) or have declared bankruptcy.

The person may want just one person to make decisions for them, or they can choose more than one person. If they want more than one person they can decide whether these people have to agree each decision jointly or if one person can decide for some things alone. If later the people chosen disagree about a decision that must be made jointly, they can meet to discuss and decide what is in the person’s best interests. If they still cannot agree one person may ask the Court of Protection to decide.

Sometimes this can be a difficult conversation. There are responsibilities for someone agreeing to be a Power of Attorney or a Deputy. It is a good idea to talk about this at the start. The Office of the Public Guardian has 5 top tips on starting a difficult conversation.

Office of the Public Guardian:
Top tips on starting difficult conversations about Legal Power of Attorneys.

The Government service in charge of this is called the Office of the Public Guardian. It helps people who need an attorney, and helps attorneys as well. It keeps a record of attorneys and deputies, and investigates any complaints about them. 

To set up a Power of Attorney takes time (about 20 weeks in January 2024) to fill in the forms and register with the Office of the Public Guardian. There is also a cost. Most people pay but there is advice on the Government website on exemptions if you receive certain benefits, and discounts if you receive Universal Credit or have a low income.

Gov.UK: Power of Attorney.

They also have many guides and advice to support you.

Office of the Public Guardian:
Getting started – property and financial affairs, health and welfare.
How to be an attorney – property and finances, health and welfare.

If the person can still make their own decisions but needs someone to make decisions for them for a short time (for example because of illness or during a holiday) they can use an Ordinary Power of Attorney. The person must be able to make their own decisions to use an Ordinary Power of Attorney, so to help plan for a time when they can no longer make decisions it is better to use a Lasting Power of Attorney.

There is a standard form of words you should use for the Ordinary Power of Attorney. There are websites that can create this by asking you a few questions, some for free and others that charge. You can also buy a pack with advice and a form to complete. Available from stationery shops like WH Smith, Rymans or from online shops like Amazon.

You can get more advice on the Ordinary Power of Attorney from a solicitor, from Citizens Advice or from the Government.

Law Society: Power of attorney.

Citizen's Advice: Ordinary Power of Attorney.

Gov.UK: Make decisions for someone.

If the person lacks mental capacity you can apply for the power to make decisions for them. This is called a Deputy. This is a legal power to make decisions about their personal welfare (such as medical treatment), or for their property and finances (called property and affairs), or both.

A Deputy is appointed by the Government’s Court of Protection, so they are sometimes called a Court Appointed Deputy.

A Property and Finances Deputy can be responsible for collecting benefits and paying bills, and any valuables or property.

The Government’s Court of Protection must appoint the Deputy and decide what powers to give them. There is a charge for this, but some people who receive benefits don’t pay. People on a low income can apply for a lower charge.

The Government service in charge of this is called the Office of the Public Guardian. It helps people who want to be a Deputy. It keeps a record of attorneys and deputies, and investigates any complaints about them.

You can download a form to complete from the Government website. The form includes advice on what to do, what you can and cannot do and your responsibilities. You must write a report each year with details of the decisions you have made, or more often if additional information is requested. There is detailed advice given as part of the guide to Become a Deputy.

Gov.UK: Become a Deputy.

 Specialist advice and support.

The government has created information and advice about mental capacity and the processes involved, including the legislation and guidance on how the Act works in practice.

Legislation: The Mental Capacity Act 2005.

Gov.UK: Mental Capacity Act 2005 Code of Practice (PDF, 1.35 MB).

The Court of Protection is responsible for how the Mental Capacity Act operates. It deals with the financial and serious healthcare matters of people who lack mental capacity. This includes resolving disputes about what should happen to someone who lacks mental capacity such as their finances or their welfare.

Gov.UK: Court of Protection.

The Court of Protection Handbook website has guides and resources to help people understand how the Court works.

Court of Protection Handbook: Resources. A basic guide to the Court of Protection (PDF, 200 KB). Taking part in the Court of Protection easy read (PDF, 625 KB). What do all the legal words mean? (PDF, 158 KB).

The Court is supported by the Office of the Public Guardian. They help people plan for someone to make decisions for them, should they become unable to do so because they do not have mental capacity. They also help people to make decisions for those that do not have the ability to decide for themselves.

Office of the Public Guardian: About us.

The NHS has detailed information about mental capacity and helping someone to make decisions.

NHS Social care and support guide: mental capacity.

NHS: People making decisions for you easy read factsheet (PDF, 2.7 MB).

The Money Helper website from the Money and Pensions Service provides free information and an advice service for people to better manage their money. This includes advice on the formal help available, and advice if the person you want to help has lost mental capacity.

Money Helper:
If the person you want to help has lost mental capacity.
When someone needs formal help managing their money.

Citizens Advice offers confidential advice online, over the phone, and in person, for free. Their debt and money advice includes managing someone’s affairs and

Citizens Advice: Managing affairs for someone else.

Citizens Advice Sheffield is part of the Advocacy Hub. The Hub provides advocacy support including the Independent Mental Capacity Advocate service.

Citizens Advice Sheffield: Independent Mental Capacity Advocacy.

The Law Society is the independent professional body for solicitors in England and Wales. They have a database of legal professionals to help you find a solicitor, and advice on Power of Attorney. They also have page that explains common legal issues, advice on using a solicitor, and a page for legal words and names (called a glossary).

The Law Society: Power of Attorney. Your guide to Financial matters for older people (PDF, 407 KB). Find a solicitor. Common legal issues. Using a solicitor. Legal glossary.