Loss of Mental Capacity – The Facts

What happens when your loved one is diagnosed with dementia and has been told they no longer have mental capacity? Does this mean they lose all their rights to make their own decisions?

What does lack of mental capacity mean and what potential problems do you need to consider?

Being told you have Mild Cognitive Impairment ((MCI) or early signs of dementia can be a scary diagnosis.

At Steene Law we say that dementia means that a part of the body is processing information differently. It does, however, mean that in practical terms your loved one will need to put in place plans for the future.

Does dementia mean my relative can no longer make their own decisions?

No! A diagnosis of dementia doesn’t mean that making decisions are taken away from your loved one.

The Mental Capacity Act 2015 starts off by assuming everyone does have mental capacity to make their own decisions.

At Steene Law, we apply the following test:

• Can a person take in information, retain it for sufficient time, use it to help make a decision and then communicate that decision?

So if your loved one has been told they have dementia and does not have mental capacity, that may well be wrong.

They may still be able to undertake important decisions such as make a Will, make a Lasting Power of Attorney and decide what future treatment they do or don’t want. But the key is not to wait and to make sure the decision-making process is carried out correctly.                                                           

Even with a diagnosis of dementia, we are allowed to make unwise decisions. Assessing whether someone fully understands the consequence of an unwise decision can be particularly challenging.

That’s because an ‘unwise decision’ does not, in itself, prove that a person lacks mental capacity. If it did, then why on earth would anyone be allowed to voluntarily jump out of an aeroplane hoping a parachute will open!

Who decides on mental capacity?

We come across two common misunderstandings about mental capacity assessments:

1. Only a GP can undertake a mental capacity assessment
2. Once a person has “lost capacity” it is completely gone forever

Firstly, a mental capacity assessment can be done by anyone who has experience and knowledge of the Mental Capacity Act 2005, together with the Mental Capacity Act Code of Practice. 

GPs have the benefit of your relative’s medical history and they know how to undertake mental capacity assessments.

That said there are different levels of mental capacity and knowing how to interpret the test might require more expert knowledge than a GP who has 8 minutes to ask what the issue is, read the notes, undertake the test, and then record the findings!

Yes, it can be complex however it is neither exclusively a legal nor a medical process. Mental capacity assessments require a knowledge of both.

Secondly, capacity is ‘issue’ specific, not all encompassing.  For example, a person might have capacity to decide what they want to wear on a particular day but not have capacity to decide where they want to live.

It is important to be specific regarding the question that is being asked. It is just as important that the person asking the question does not bring any prejudice or misconceptions with them.

So, what does this mean in practical terms?

As experts who act for vulnerable, elderly people we know from experience that Mental Capacity laws are often wrongly applied.

What is worse, it is often the people in authority – who frankly should know better – who misinterpret the law, either through ignorance or a blatant disregard for the consequences that their decision will have on the vulnerable individual concerned.

So, if the people in authority are getting their facts wrong regarding mental capacity, you may wonder, what chance does a layperson have when faced with red tape and lengthy medical reports filled with clinical jargon?

The answer is to seek expert legal advice. If you are concerned about a mental capacity decision or your relative has care needs but lacks mental capacity and decisions are being made which you don’t agree with – you need to speak to us.