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If the person you want to help has lost mental capacity

If someone really can’t manage their own affairs, you can arrange to manage them for them. You’ll usually be carefully monitored to make sure that you’re always acting in the person’s best interests, and you’ll be restricted with the types of financial decisions you can make.

What is mental capacity?

Mental capacity is the ability to make a timely decision or take a particular action for yourself. People who can’t do this are said to ‘lack capacity’.

Everyone should have the right to make choices about their own life. But sometimes injury, illness or disability can affect someone’s understanding and ability to make good decisions. This could only be for a short time or it might be permanent.

Mental capacity could be affected by:

  • dementia
  • a severe learning disability
  • a brain injury
  • a mental health illness
  • a stroke
  • unconsciousness caused by an anaesthetic or sudden accident.

Checking if someone has lost mental capacity

In general, unless it’s a person who has mental capacity and gives you permission through a power of attorney to act on their behalf, you can only take over managing someone’s affairs if they’ve lost mental capacity. So the first thing to do is to check if this is the case or not.

In England and Wales, the law that underpins mental capacity assessments is the Mental Capacity Act (2005) which states that when deciding whether someone is unable to make a decision, the following four factors should be considered:

  1. Can the person understand the information that is relevant to the decision?
  2. Can the person retain the information long enough to make the decision?
  3.  Can the person weigh up the information as part of the process of making a decision?
  4. Can the person communicate their decision – whether by talking, sign language or any other means?

If they can do these things, the legal position is likely to be they have capacity to make their own decisions and should be allowed to do so.

There might be things you can do to help someone make a decision for themselves. For example, you could consider whether:

  • they have all the information they need to make the decision
  • they would understand better if information was explained in another way
  • there are times of day when they understand better
  • there are locations where they feel more at ease to make decisions
  • decisions can be put off until they feel able to make them
  • anyone else can help them to make choices (for example, a family member, carer, interpreter or advocate.

If they can do the four things detailed above these things, with help if needed, the law states they have the capacity to make their own decisions. 

In the Codes of Practice for the Mental Capacity Act (2005) those who decide whether or not a person has capacity to make a particular decision and any given 

Under the Code of Practice that underpins the Mental Capacity Act (2005), those who decide whether or not a person has the capacity to make a particular decision and any given time are referred to as ‘assessors’. This is not a formal legal title. Assessors can be anyone – for example, family members, a care worker, a nurse, a doctor or a social worker. But it is the responsibility of anyone who makes decisions on behalf of others to recognise their role and responsibilities under the Code of Practice. 

England and Wales

You can find out more about checking if someone has lost mental capacity on the GOV.UK website

Scotland

Mental health capacity in Scotland is covered under the Adults with Incapacity (Scotland) Act 2000.

You can contact the Mental Welfare Commission to find out more. For help with mental health and incapacity law, and care and treatment:

Northern Ireland

Northern Ireland created the Mental Capacity Act (Northern Ireland) 2016 to cover both mental health and capacity issues within one piece of legislation.

Part 1 of the Act that covers ‘deprivation of liberty’ issues came into force on 1 October 2019, but much of the Act is not yet in force.

Currently in Northern Ireland, common law requires that decisions must be made in a patient’s best interests if the patient lacks capacity.

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If you’re sure the person hasn’t got mental capacity

If you’re sure someone doesn’t have mental capacity after thinking about other ways to help them, you can still get the right to manage their money for them. 

You would need to make a formal application to either the Court of Protection (England or Wales), The Office of the Public Guardian (Scotland) or The Office of Care and Protection (Northern Ireland) to become either a deputy (England or Wales) a guardian (Scotland) or a controller (Northern Ireland).

You won't be called an attorney although you'll usually have the same power as an attorney. You won't be involved in setting up a power of attorney, but you'll have an official document confirming the powers that you've been given to act.

But you have to apply to a court as power of attorney is a legally binding document.

There are a few steps to follow to get this done:

Step one – check for an existing power of attorney

The person might have set up an enduring or lasting power of attorney already, instructing someone to formally manage their money and make decisions on their behalf if they’re no longer able to.

Ask them, their family or their solicitor. If they can’t tell you, you can check with the official body for where they live:

If you find there is a power of attorney already in place. you should register it (if that’s needed) if you’re named as the attorney or contact the attorney if you’re not. The office you or the attorney contacts will tell you how.

Step two – apply for the power to manage a person’s financial affairs where there’s no existing power of attorney

If the person you want to help doesn’t already have a power of attorney in place, you need to start the process for applying to get it.

You’ll have to make a formal application to the right agency, depending on where you live in the UK.

They’ll want to see proof that the person you’re applying for has lost mental capacity in respect of the decision/s that need to be made and that you’ll be acting in their best interests.

You can find instructions and paperwork for your application on these websites:

You’ll have to pay an application fee, and it can take a few months to get the paperwork properly sorted out.

To avoid confusion, its important to know that you won’t be called an ‘attorney’ if you make this kind of application. Although you’ll usually have the same power and responsibility as an attorney to manage the affairs of the person who has lost mental capacity.

  • In England and Wales you’ll be called a deputy
  • In Scotland, you’ll be called a guardian
  • In Northern Ireland, you’ll be called a controller
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Step three – show the document to the relevant financial providers

When you’ve completed the application process, you’ll get an official document confirming that you’ve got the power to act.

You’ll need to show certified copies of the document (which have been copied by someone at a bank or solicitor’s office) to any financial organisations that you want to give instructions to. For example, the person’s bank or insurance company.

You can do this as and when you need to, but it’s a good idea to show the document to every organisation you want to deal with as soon as you get it.

They’ll keep the details on file, which will save you time later on.

Step four – manage the money according to the rules

When you manage money for another person in this way you must always:

  • make decisions in the person’s best interests
  • only make the decisions that the court says you can
  • take care in making your decisions.

This kind of power over someone’s financial affairs can sometimes be abused, so the office that set it up will want to check now and then that everything’s legal and above board.

This means you have to keep clear accounts and note down the reasons you’ve made particular decisions.

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MoneyHelper is the new, easy way to get clear, free, impartial help for all your money and pension choices. Whatever your circumstances or plans, move forward with MoneyHelper.

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MoneyHelper is the new, easy way to get clear, free, impartial help for all your money and pension choices. Whatever your circumstances or plans, move forward with MoneyHelper.

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