Welfare and finance decisions for people who lack Mental Capacity

The ability to make decisions is called mental capacity. People may 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 their best interests are protected in law.

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:

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

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. More about MCA

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

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 more about DOLS

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.

Last Updated: 28 July 2021