Welfare and finance decisions for people without Mental Capacity

What is Mental Capacity?

The ability to make decisions is called mental capacity. People may have their mental capacity affected and have difficulties making decisions some or all of the time because they have a learning disability, dementia, a mental health problem, head injury, stroke or unconsciousness caused by an anaesthetic or accident.

There are a number ways in which the best interests of people are protected in law.

Protecting and Empowering People Who May Lack Mental Capacity

The Mental Capacity Act (MCA) 2005

This Act applies to anyone aged 16 or over in England and Wales. It aims to help and protect people who may be unable to make a particular decision at a particular time, this includes:

  • everyday decisions about personal care (such as what you eat or wear)
  • decisions about where a person lives
  • major decisions about money, property, social care, medical treatment

The Act created a number of ways that someone can plan for if there is a time when they cannot make decisions for themselves or communicate their views, this includes "Lasting Power of Attorney" (LPA).

More information about the Mental Capacity Act is available:

Independent Mental Capacity Advocates (IMCAs)

IMCAs support and represent people who lack capacity to make important health and welfare decisions themselves and who do not have family or friends who are willing and able to be consulted about the decision. An IMCA must be instructed if a decision has to be made about:

  • serious medical treatment; or
  • a long-term stay in hospital or a care home (long term means longer than 28 days in hospital or eight weeks in a care home); or
  • a move to a different hospital or care home.

An IMCA may also be consulted for decisions concerning care reviews or in adult protection cases.

The local authority or NHS organisation providing the person’s care or treatment is responsible for instructing the IMCA and they must consider the IMCA's recommendations.

Deprivation of Liberty Safeguards (DOLS)

This sets out arrangements for people who lack mental capacity to decide or consent to the arrangements for their care and treatment and who may:

  • not be allowed to leave the care home or hospital
  • have no, or very limited, choice about their life within the care home or hospital
  • be prevented from maintaining contact with the world outside the care home or hospital

There is no definition of what is a deprivation of liberty, it will always depend on the individual situation.

The safeguards aim to ensure a person is only deprived of their liberty where this is necessary for their safety, and that they receive the care and treatment they need. They also (when a DOL Authorisation is in place) provide people with access to a court to challenge their detention and a representative to support them.

If someone is at risk of, or is already being deprived of their liberty, the managing authority of the care home or hospital must apply for authorisation to the supervisory body; in Milton Keynes this is Milton Keynes Council (Adult Social Care)  and the Local Policy and Procedures must be followed. 

Adult Services - Adult Social Care ACCESS Team

Adult Social Care ACCESS Team contact information

Monday to Friday 8:30am - 5:15pm, Civic, 1 Saxon Gate East, Central Milton Keynes MK9 3EJ