If the person you want to help 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.

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. 

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

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:

• call their Advice Line on 0800 389 6809 (calls are free)
• email mwc.enquiries@nhs.scot or;
• visit the Mental Welfare Commission for Scotland website

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:

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:

• England or Wales: The Office of the Public Guardian
• Scotland: The Office of the Public Guardian (Scotland)
• Northern Ireland: The Office of Care and Protection

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.

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:

• England or Wales: The Court of Protection
• Scotland: The Office of the Public Guardian (Scotland)
• Northern Ireland: The Office of Care and Protection

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, it's 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