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Are you supporting someone who may lack capacity?

If someone lacks capacity, they are unable to make decisions for themselves. The Mental Capacity Act requires us to assume that people have capacity unless it is established otherwise.

They should be given all possible help to make specific decisions before being assessed as lacking capacity.

This includes what may be considered as an unwise or unusual decision, reflecting that everyone has their own values, beliefs and preferences, which may not be the same as other peoples.

If we think that a person may lack the capacity to make a decision, a social care worker or another suitably qualified person will carry out a capacity assessment in relation to the specific decision to be made.

If we assess that a person lacks the capacity for a particular decision, decisions must be made in their best interests. Any restrictions as a result of this decision will be in the person’s best interest and will be proportionate to the likelihood of the person suffering harm as a result of the decision.

Planning will always continue to involve the person as far as possible, taking account of their wishes, feelings, values and aspirations as well as their needs and wellbeing.

They may be supported and represented by family and friends. If this is not possible, an independent advocate will be appointed. This person will represent them, speak for them, and challenge our decision if necessary.

Who could act for them?

We will find out if there is an appropriate person to represent them. This could be

  • enduring power of attorney (EPA)
  • lasting power of attorney (LPA) for property and affairs
  • lasting power of attorney (LPA) for health and welfare
  • property and affairs deputyship under the Court of Protection
  • health and welfare deputyship under the Court of Protection
  • any other person dealing with their affairs (for example, someone who has been given Appointeeship by the Department of Work and Pensions for the purpose of benefit payments)

If none of these are in place, a suitable family member or their solicitor will be encouraged to apply for a Property and Affairs Deputyship through the Court of Protection.

How and when is the financial assessment completed

We still charge people who have eligible care needs but lack capacity. We will make sure they are fully represented, and decisions are in their best interest.

If somebody is appointed to act for the person, we will ask for any money we have paid on their behalf to be repaid subject to a financial assessment.