Making decisions for someone without capacity

The Mental Capacity Act 2005 protects people who cannot make decisions. It outlines who can make decisions for a vulnerable person, when they can do this, and how they should go about it.

The act applies to people over 16 years of age who cannot make decisions for themselves.

When and how do I make decisions for someone who lacks capacity?

You should follow the five principles outlined in the act when making decisions for someone:

1. You must assume a person has capacity unless it is shown that they lack it.
2. You must make all reasonable steps to help and encourage people to make decisions.
3. You should not treat a person as unable to make a decision just because they make an unwise decision.
4. You must make decisions for a person without capacity based on their best interests.
5. You must choose the least restrictive option for the person who lacks capacity.

Checklist for making decisions for someone who lacks capacity

You should follow the checklist included in the act when making decisions for someone:

1. Encourage the person to take part as much as possible.
2. Identify all relevant circumstances.
3. Find out the person's past and present wishes, beliefs, values and advanced statements.
4. Do not make assumptions based on the person's age, appearance, condition or behaviour.
5. Assess whether the person might regain capacity.
6. Choose to engage with life-sustaining treatment.
7. Consult with others where it is appropriate to do so. This includes anyone named as someone to be consulted, carers, close friends, relatives, attorneys, and deputies appointed by the court.
8. Choose the least restrictive option.
9. Abide by any valid advanced decision.

Who can be a decision maker?

You may be asked to make decisions for someone who lacks capacity if you are a (any of the following):

• carer
• family member
• nurse
• doctor
• social care staff member
• power of attorney
• deputy appointed by the Court

Learn more about powers of attorney on the NHS's website.

What if there is no one to make a decision?

Independent Mental Capacity Advocates (IMCAs) make decisions for a person when they have no appropriate family or friend to do so.

If there is no one appropriate, the local authority or NHS decision maker (such as a doctor or nurse) must refer that person to an IMCA for decisions about (any of the following):

• serious medical treatment
• long-term moves (more than 28 days in hospital or 8 weeks in a care home)
• Deprivation of Liberty safeguards

They may also refer someone with no appropriate family or friend to an IMCA for decisions about (either of the following):

• care reviews
• safeguarding referrals

Visit VoiceAbility's website for support and advice.

Further information and referral form