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A part of the end-of-life planning process which people regularly need to consider is the Mental Capacity Act (MCA), and how it might relate to them, or their loved ones. This article aims to clarify what the Mental Capacity Act is, what it provides for, and how it could impact your life, or the lives of those around you.
We’d also just like to say that, if you’ve come to find us here, then we recognise that you could be currently facing a difficult time. You could have Lasting Power of Attorney over a loved one’s affairs, or you may be looking for more information about end-of-life planning, such as on wills or funeral planning. Aura is the UK’s top-rated national ‘Cremation Services’ provider on Trustpilot, with a rating of 4.9/5 stars. We offer our funeral services in the shape of our direct cremation services to those looking for something more immediate, and our funeral plans to those looking ahead to the future.
The Mental Capacity Act (MCA) is a piece of 2005 UK legislation that aims to support people who may lack the ability to make certain decisions for themselves. It came into force in 2007, and applies in England and Wales. In Scotland, a similar piece of legislation called the Adults with Incapacity (Scotland) Act has been in force since 2000.
The purpose of the MCA is to protect the decision-making liberty and integrity of each individual as far as possible, by outlining various principles. These principles help those around them to determine whether it is acceptable to make a decision on their behalf. The principles also help third parties to ensure that any decisions they do make are both in the best interests of the person, and that they represent the least invasive course of action possible.
This legislation aims to protect our rights whilst also acknowledging that there may be times where others have to make quick decisions on our behalf, which could be of both a serious or an everyday nature. It applies to all those who are 16 years of age or older.
The Mental Capacity Act expresses five key principles.
Simply put, the basis of this principle is that each of us should be considered capable of making decisions for ourselves until proven otherwise. It aims to help us understand that we shouldn’t prejudge the apparent decision-making capacity of someone based on characteristics like age or whether or not they have a physical disability or are neurodivergent.
We should each be given a presumption of capacity until it is proven otherwise after a mental capacity assessment has been made. Depending on the gravity and nature of the decision (e.g., what clothing we should wear, or whether or not surgery should be performed on us) such an assessment could be made by a doctor, or even simply friends and family.
Having the right to make ‘unwise’ decisions protects our ability to decide things for ourselves, even if those things are not necessarily to our benefit. Just because we might make a decision which others deem to be unwise, it doesn’t mean that we should have our capacity to make decisions in general questioned or removed.
This principle aims to avoid a situation where a third-party adds a ‘bad’ decision together with another factor, such as our advanced age, before jumping to the conclusion that we must have lost our decision-making capacity. Respect for personal choice and autonomy even extends to those situations where we make choices which appear wrong or disadvantageous.
Let’s say, for example, that we express the wish to have a football theme at our end-of-life celebration. Whilst some might view this as a ‘bad’ decision, possibly connected to mental decline or age, this is not necessarily a fair judgement to make. Eccentric decisions, or highly personalised ones, don’t always equate to ‘bad’ decisions, and we all have our own beliefs on death and funerals in religion.
The idea behind this principle is that we should all be given as much encouragement, guidance, and support as possible to make our own decisions, before it can be decided that we no longer have decision-making capacity.
If our hearing is now too poor to allow us to easily understand verbal speech, then information should be provided to us in another format, such as writing, to give us the chance to grasp it. If we can’t understand the language of the speaker, or of an important document, then a translator or interpreter should be found. It might be that a medical issue like a stroke has robbed us of the ability to communicate with anything other than gestures, in which case these will need to be regarded and understood.
Even for those who may be dealing with dementia and end of life, certain steps may be required to verify and protect our decision making capacity. For instance, less complex ways of communicating could be used to help us understand, such as visual cue-cards. Or the location of our conversation could be changed to one that is more conducive to our understanding.
This principle aims to make it so that decisions can only be made on behalf of someone else once it has been confirmed that they no longer have the capacity to make it for themselves. Any such decisions must also always be in the subject’s best interests.
For instance, if we are not religious, it would not be in our best interests to have a religious figure present with us as we are passing away, just because someone in our family who might be making decisions on our behalf happens to be religious; this may well be in their best interests, but not ours. The guiding light here is that any decision to be made on our behalf should resemble as closely as possible the decision that we would have made ourselves if we had been able. In healthcare matters, if we’ve put together an end-of-life planning guide, complete with an Advanced Care Directive, this can make things a lot easier.
This principle guarantees that any decision taken on behalf of another person follows the course of action which is least restrictive to their rights and freedoms as possible, whilst still being within their best interests.
For instance, let’s say that we have advanced dementia and we are no longer able to understand information clearly enough in order to make an autonomous decision. We now require full-time care and supervision. Such care could be provided in a nursing home, but could also be provided from within our own home. The nursing home is the least restrictive to our freedom, so is the option which should be chosen on our behalf if possible, assuming it’s not possible to provide for our needs in our own home.
The Mental Capacity Act applies to all those in England and Wales who are 16 years of age or older, and who no longer have the mental capacity to make decisions for themselves.
According to the NHS, the MCA sets out a two-stage test for assessing someone’s mental capacity:
Just because someone is unable to make one particular decision, it doesn’t mean that they are generally unable to decide anything. If someone has dementia, it may be that there are times when they can decide things for themselves, and times when they can’t, or that there are specific types of decisions which they are unable to make, whereas others may be fine.
And, in the case of point 2, someone who is intoxicated may not be able to make an important decision in their own best interests now, but, if it is possible to wait, doing so will allow them time to sober up and regain their critical faculties.
The MCA covers a wide range of possible decisions that can be made on our behalf should we lose our mental capacity to decide things for ourselves. These could be decisions which fall on the more trivial, day-to-day side which can be made by friends and family, such as what food we should eat, and what clothing we should wear.
They could also be much more serious, life-altering decisions, such as whether or not to go through with surgery, to resuscitate or not to resuscitate, or whether or not to close a bank account. These more serious decisions can usually only be made by medical or legal professionals who are following your Advance Care Directive, or who have been given one-off authorisation by a Court of Protection. You may also have helped a relative in setting up a Power of Attorney over your affairs.
There are various legal frameworks under the Mental Capacity Act which are important: Lasting Power of Attorney (LPA); Court of Protection; and Advance Decisions Directives.
A lasting Power of Attorney is a document in which you grant ‘Attorneys’ (perhaps friends, family, or your solicitor) the power to make (or help you to make) decisions should you become partially or fully unable to do so through illness or anything else. They need to be 18 or over, and, if you appoint more than one, you’ll need to decide whether they can make decisions independently or whether they will need to make them jointly.
Power of Attorney can relate to two main types of decisions: decisions about our health and welfare, or decisions about our property and financial affairs.
The Court of Protection is a legal body which can appoint deputies to make decisions on your behalf in emergencies where we haven’t given lasting power of attorney to anyone over our affairs. The Court can also make such decisions on its own without deputies, if necessary, and can make several such decisions over a period of time.
The Court of Protection can also evaluate a proposed Power of Attorney, hearing objections to its registration.
An Advance Decision is a type of preemptive refusal to receive treatment should the need arise, and you no longer have mental capacity to make the decision for yourself. It could include a refusal to receive ventilation or antibiotics, or to be resuscitated should you stop breathing. It is a legally binding document as long as it meets certain criteria; the medical professional in whose care we end up would then need to administer care according to its boundaries.
An Advance Directive is a more detailed, general health statement which allows us to document our care preferences. We could include the things which would be included in an Advance Decision, but also more general pointers about our care preferences, such as whether we prefer to sleep with one pillow or two, whether we like the door of our room open or closed, or the window open at night. Certain elements of an Advance Directive may not be possible to carry through, but it gives the person caring for us the chance to know what we like, and how to accommodate our preferences.
In cases where a decision, for instance, about someone’s care, could deprive them of their liberty, there are legal safeguards in place. Currently, the Deprivation of Liberty Safeguards (DoLS) are the legal framework in place, but this will transition to the Liberty Protection Safeguards (LPS), hopefully at some point during the current government.
When we are no longer able to make our own decisions, and we are in the care of medical professionals, there may be times when necessary care could come at the cost of our liberty. Where a medical-care provider suspects that this may be about to happen, they will need to apply to their local authority, who will arrange for our care needs to be assessed.
If they agree that the proposed healthcare is required and in our best interests, they will grant authorisation to impinge upon our liberty in the name of our health. If it is not, then the healthcare provider will have to rethink their course of action, as it would not be legal to proceed with the prior course of action. The name for the mechanism which guarantees this balance between our rights and our health needs is the Deprivation of Liberty Safeguards.
The DoLS is considered to be overly complicated and bureaucratic, with one of the main aims of the transition to LPS being to make things more streamlined. The LPS was introduced in 2019, but its introduction was delayed by Covid, and it has still not been enacted in law. The previous government shelved matters with the implication being that the current government would pick it up.
A court case in 2014 (the ‘Cheshire West’ case) reduced the threshold for what is considered a deprivation of liberty, which then saw a corresponding increase in the number of applications on its basis from healthcare providers. This has led to delays in the system. The transition to LPS intends to resolve these delays and make life easier for the relevant people. You can find a detailed explanation of what is changing from DoLS to LPS by following the link.
The Mental Capacity Act extends various benefits to us all, from protecting the vulnerable, to empowering the autonomy of all, and supporting families and caregivers.
The MCA does a good job of balancing the possible need to act at short notice for our own good (in our financial or health matters, for instance), with our rights as individuals. By establishing the need to assess our mental capacity whilst giving us presumption of capacity until found otherwise, the onus is on the decision maker to show that they have taken the relevant steps before having made a decision. Any such decision then needs to be the least invasive possible, and objectively for our best interests.
Liberty safeguards also ensure a legal process for ensuring that any decisions which may impinge on our liberty are given local authorisation before being enacted. All of these mechanisms mean that, should we temporarily or permanently lose our ability to autonomously decide matters for ourselves, we won’t simply be subject to the whim of whoever claims to be acting in our best interests.
The principles on presumption of capacity; the right to make unwise decisions; and the need to support decision making all work together to empower us to be autonomous. We will get as long as we need to grasp the facts of the situation, if we are able, and to express ourselves in response. There will also be no prejudice towards our eccentric or idiosyncratic decisions, in accordance with our right to self-determination.
The MCA also gives families and caregivers the peace of mind to know that there is a legal framework in place that will help them to respect the will of their loved ones, but also to give them the power to step in without qualms should the need arise. There are clear guidelines for family and for medical professionals on how to put us first, but also on how to step in where necessary – even where their proposed treatment could infringe our liberty. All of this works to reduce conflict within families, and between families and healthcare professionals.
Here are some common FAQs about the MCA.
The Mental Health Act (MHA) and the MCA are quite similar, and both concern the treatment of individuals who may be unable to consent to proposed forms of medical care. As such, there is potentially some overlap between these two pieces of these two legislation. However, the MHA specifically relates to situations where someone has been physically detained (sectioned) in a mental-health facility in order to undergo relevant treatment.
The MCA, however, could relate to mental health, but it could also relate to a physical incapacity such as unconsciousness. It may relate to medical matters, but may also concern financial decision-making autonomy.
According to the MCA, we are unable to make a decision if we cannot do one or more of the following things:
Depending on the gravity of the decision, this assessment could be made by our friend or family member, or by a medical professional or Court.
Mental capacity can fluctuate depending on the reason for which it was lost in the first place. If, for instance, our capacity was impaired because of intoxication, we need only wait until we are sober again before we regain it. Similarly, if a health matter has put us into a coma, should we wake up again, we will hopefully regain some or all of our capacity, but of course, this can vary.
We hope this article on the Mental Capacity Act has been useful to you. Depending on your situation, you may find it useful to integrate all of your end-of-life needs (including those which may relate to the Mental Capacity Act) into one document, such as an end-of-life planning guide, or a funeral checklist. In much the same way that it can be useful, ahead of time, to think about your future health needs, you can also maximise your autonomy by thinking ahead about your funeral arrangements. You can even use Aura’s unique digital platform, the Aura Circle, to keep all of your end-of-life matters together in one handy place. You can tell your life story, upload photos, and share it with friends and family.
Feel free to compare Aura funeral plans with other leading providers, and to contact us when you’re ready. Our wonderful team is always on hand to answer your questions. If you prefer, you can also download our funeral plan brochure, which should answer any general questions about how our funeral plans work.
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