Mental capacity and making decisions

If you lose the ability to make decisions

Your ability to make decisions is called your mental capacity. If you can't make a decision at the particular time it needs to be made, this is known as lacking mental capacity.

In Scotland, if you lack mental capacity, you're known as an adult with incapacity.

Throughout your illness, you'll have to make lots of decisions. These could be big things about your illness, like whether you:

• want a certain kind of treatment
• would want surgery, if you needed it
• want to move in with someone else or move to a care home.

They could also be more day-to-day things, like:

• what you spend your money on
• looking after your pets
• what you buy in your weekly shop.

You might lose the ability to make these decisions. This could be due to:

• dementia
•  a condition that affects your memory or thinking
• a learning disability
• a mental health illness
• cancer affecting the brain
• delirium or confusion
• brain injury
• stroke
• acute severe illness, for example sepsis
• being unconscious due to injury, illness or medication
• being intoxicated from drugs or alcohol
• being unconscious or drowsy because you're in the last days and hours of life.

These conditions might impact your mental capacity. But just because you have one of these doesn't mean you're unable to make decisions.

You might be able to make some decisions, but not others. For example, you might be able to decide what to wear every day, but you might not be able to make decisions about how to spend your money.

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Assessing your ability to make decisions

If someone is trying find out if you're able to make a decision, they will think about two questions.

• Do you have a condition that affects your mind or brain?
• Does this condition mean you're unable to make a specific decision when you need to?

You're considered unable to make a decision if:

• you can't understand information about the decision
• you can't remember that information long enough to make a decision
• you can't use that information to make a decision
• you can't communicate your decision.

This process is known as assessing your mental capacity.

The people who might assess your mental capacity include:

• health and social care professionals
• paid carers
• the people looking after you (for example, a friend or family member).

For most day-to-day decisions, like deciding what you should wear or eat, the people looking after you don't need to follow a formal process to assess your ability to make a decision. But they should be able to explain how they reached their decision if they were asked.

For more complex decisions, like deciding whether to have surgery, the people assessing your mental capacity must get an opinion from a professional. This could be a doctor, psychologist, or solicitor. In these cases, the person assessing your mental capacity should write down how they assessed you.

Your rights if you can't make decisions anymore

If someone is deciding whether you're able to make decisions, there are certain laws in place to make sure they do it properly. These laws are there to protect you:

• The Mental Capacity Act 2005   – the law in England and Wales.
• The Adults with Incapacity Act 2000   – the law in Scotland.
• The Mental Capacity Act 2016   – the law in Northern Ireland. Only some parts of this law have been put in place.

Because of coronavirus, there have been changes to how some of these laws work.

Read more about changes because of coronavirus below.

If you're worried about what will happen if you lose your ability to make decisions, be aware that there are legal rules to protect you. These say:

• people should assume you're able to make a decision, unless it's been shown you can't
• people should support you to make your own decisions where possible
• people shouldn't assume you're unable to make a decision just because they think the decision is unwise
• if someone makes a decision for you, they should consider what will benefit you
• if someone makes a decision for you, they should consider what will be the least restrictive option for you.

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Putting plans in place in case you can't make decisions in future

You can put plans in place in case you lose the ability to make decisions in future. Speak to your doctor or nurse if you want to do some of the things below – there are certain processes you have to follow.

Let someone else make decisions about your health and treatments

You can choose someone to make decisions about your health and welfare on your behalf. This could be a friend, family member, or a professional like a solicitor. This is called:

• a lasting Power of Attorney for health and welfare in England and Wales
• a welfare Power of Attorney in Scotland.

In Northern Ireland, there is no Power of Attorney for health and welfare. Decisions around someone's health and welfare will be made by the next of kin.

Read more about health and welfare Powers of Attorney.

Let someone else make decisions about your money and property

You can choose someone to make decisions about your money or property on your behalf. This is called:

• a lasting Power of Attorney for property and financial affairs in England and Wales
• an enduring Power of Attorney in Northern Ireland
• a continuing Power of Attorney in Scotland.

Read more about financial Powers of Attorney.

Make a plan for what you want to happen in the future

You can make an advance care plan. This tells people how you want to be cared for in the future. You should discuss what's in your plan with the people important to you, as well as your doctor and nurse.

Read more about advance care plans.

Write down which treatments you don't want

You can make an advance decision to refuse treatment (ADRT). This allows you to refuse a specific type of medical treatment. It's sometimes called an advance decision or living will. In Scotland, it's called an advance directive.

Read more about advance decisions to refuse treatment and advance directives.

You can also ask to not be resuscitated if your heart stops. You can write down this decision in a 'do not attempt cardio-pulmonary resuscitation (DNACPR)' form.

Read more about DNACPR forms.

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Making decisions for someone else

You might have to make decisions for someone else, if they lose mental capacity. For example, if you're a carer, a friend, or family member of someone with a terminal illness.

This section includes information on how you can support them and who can make decisions on their behalf.

Supporting someone to make decisions themselves

If someone is still able to make a decision, it's important to support them to make the decision for themselves. You should:

• provide all the relevant information they need
• avoid overwhelming them with information
• present all the options to them
• explain the information in a way that's easy for them to understand, for example by using simple language or visual examples
• explore different methods of communication, such as using picture cards or sign language
• ask someone else to help you communicate with each other
• check if there are times of day or places where they might be able to better make decisions
• do all you can to help the person communicate their decision.

Try to be patient. The person may need more than one conversation to make a decision.

Who can make a decision on their behalf

If the person can't make a decision because they lack mental capacity, someone else might have to make the decision for them. This could be:

• a health and social care professional
• someone legally appointed to make decisions about treatment, care and where they live, like a Power of Attorney
• someone legally appointed to make decisions about money and property, like a Power of Attorney
• a friend, family member or carer can make decisions for someone else about day-to-day things like what to wear.

If you're making a decision for another person, you must:

• think about what the person would want
• think about what's best for them
• take into account anything they've previously said that they want
• take into account any beliefs or values they have
• ask other people close to the person what they think.

People can be legally appointed to make decisions on someone else's behalf. Find out more about how to do this:

• in England and Wales  
• in Northern Ireland  
• in Scotland.  

Mental capacity and coronavirus

There are some changes to how mental capacity will work in practice because of coronavirus (covid-19). Even with these changes, it's important to know that your rights are still protected if you lose mental capacity.

• In England and Wales, the Mental Capacity Act still applies, and you're still protected by all the rights set out in the act.
• In Northern Ireland, there were changes to the Mental Capacity Act which have now expired. Read more about these changes.  
• In Scotland, there have been changes to the Adults with Incapacity Act. Read more about these changes.  

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