Mental Capacity

If you have mental capacity, you are able to make decisions for yourself. The legal definition says that someone who lacks capacity cannot do one or more of the following four things:

• Understand information given to them.

• Retain that information long enough to be able to make a decision.

• Weigh up the information available to make a decision.

• Communicate their decision. This could be by any possible means, such as talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.

The Mental Capacity Act 2005 (the ‘MCA’) affects anyone who is unable to make some or all decisions for themselves. The inability to make a decision could be because of a learning disability, mental health problem, brain injury, dementia, alcohol or drug misuse, side effects of medical treatment or any other illness or disability.

The types of decisions that are covered by the MCA range from day-to-day decisions about things such as what to wear or eat, through to serious decisions such as where you live, deciding if you need to have an operation or what to do with your money and property. However, some types of decisions, such as marriage or civil partnership, divorce, sexual relationships, adoption and voting, can never be made by another person on your behalf if you lack capacity and the MCA does not change this. This is because these decisions or actions are either so personal to the individual or because other laws govern them.

The MCA applies to situations where you may be unable to make a particular decision at a particular time, to the extent that you cannot do one or more of the points above. For example, someone with dementia may be unable to retain information long enough to make decisions about complex financial issues but able to make a decision about what to buy from a shop, someone with a mental health problem may be too unwell for a period of time to make a decision that he or she is able to make when less unwell. In both these instances there may need to be a trusted person to make a decision on their behalf or an independent advocate.

You can find out more here about how it works.

A Child Trust Fund (CTF) is a type of tax-free savings account given to every child born between 2002 and 2011, as a part of a government scheme to help children arrive at adulthood with savings. A CTF matures when the account holder turns 18. A CTF is an asset, therefore, anyone wanting to access a matured CTF must have the proper legal authority.

If they have the capacity to do so, a young adult can choose to make a Lasting Power of Attorney to give someone they trust the legal authority to access their CTF.

If a young person lacks capacity, their family or carers will need to apply to the Court of Protection for an order following the steps above. The Court will decide which type of order is necessary and in the best interests of the account holder.

If you believe that a young person in your care will lack capacity when they reach adulthood, you should put in an application for a court order with plenty of time before they turn 18. This means that when the young person turns 18, the order will be ready and you will be able to access the matured CTF.

If you are trying to access a CTF on behalf of a young person, it is likely you will not have to pay fees if you:

• apply before their 18th birthday
• ask for a fee waiver through the government Help with Fees scheme; or
• ask for a fee waiver due to exceptional circumstances

To note: If you are an appointee this does not allow you to access a CTF.