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How are decisions made on my behalf if I lack capacity?

If you lack capacity to make a decision, there’s a law called the Mental Capacity Act (MCA) that sets out how your doctor and those close to you make decisions on your behalf.

The Mental Capacity Act (MCA)

The Mental Capacity Act (MCA) has five principles which must underpin everyone’s approach to making decisions on behalf of someone who lacks capacity.

  1. A person must be assumed to have capacity unless it’s proven otherwise.
  2. All practicable steps must be taken to support a person to make a decision.
  3. A person is not to be treated as lacking capacity because they make an unwise decision.
  4. Any decision made on behalf of a person who lacks capacity must be made in their best interests.
  5. Any act done on behalf of a person who lacks capacity must be the least restrictive option.

How decisions are made on your behalf if you lack capacity depends on whether or not you’ve made an Advance Decision (Living Will) or a Lasting Power of Attorney for Health and Welfare (LPA).

If you’ve made an Advance Decision (Living Will)

If you lack capacity to make a decision about your treatment and have previously made an Advance Decision refusing a medical treatment, the healthcare professional in charge of your care must decide if it’s valid and applicable. If it is, they must follow it.

If you’ve made a Lasting Power of Attorney for Health and Welfare (LPA)

If you lack capacity to make a decision about your treatment or care and have previously made an LPA, the healthcare professional in charge of your care must check that your attorney has been given power to make the decision in question. If your attorney does have that power then they must make the decision. They must act in your best interests when doing this.

If you haven’t made an Advance Decision (Living Will) or a Lasting Power of Attorney for Health and Welfare

If you haven’t made an Advance Decision or an LPA, the healthcare professional in charge of your care must make a decision based on what they believe is in your best interests.

Can my family or close friends make decisions for me?

Your family members and other people close to you (including your next of kin) don’t have any legal authority to make decisions about your care or treatment if you lack capacity. Although they should be consulted, the healthcare professional doesn’t have to follow what they say.

The only way to give someone the legal authority to make decisions on your behalf is by making an LPA or a Welfare Power of Attorney if you live in Scotland.


More information

We have more information about how to plan ahead to make sure your wishes for treatment and care are followed here.