Being able to make decisions – mental capacity

Many of the arrangements described in this article may only be used where someone no longer has the mental capacity to make decisions for themselves.

When does this happen?

Older people have the same rights as any other adult. In order to exercise their rights a person must have the ability to make and communicate decisions. The law presumes that every adult has the capacity or ‘is competent’ to make their own decisions. This is the case even where someone is physically frail or has difficulty in communicating.

Mental incapacity

A lack of mental capacity may arise because someone is either unable to make a decision because of his or her mental state, because they cannot communicate that decision, or a combination of the two. It is important to
bear in mind:

• that a person’s capacity may vary depending on the nature of the decision;
• that a person’s capacity can fluctuate from day to day;
• where someone may have difficulty in communicating a decision, an attempt should always be made to overcome those difficulties before concluding that the person does not have capacity.

Under the current law different tests of capacity apply depending on which decision is being taken. The Law Commission has recommended that the test of capacity should be determined by the person’s understanding, rather than because of status or by considering whether the decision was right or wrong.

The question is ‘Does the person understand the nature and likely consequence of the decision, and can he communicate this’?

Agency – social security benefits

This method is for people who have mental capacity and who want someone else to collect their benefit for them, perhaps because they are unable to get out themselves.

A person who receives a benefit or a pension may nominate someone – called an ‘agent’ – to collect the money for them, but not to spend it. Where this is a temporary arrangement, each week the person entitled to the benefit completes the declaration on the reverse of the pension order to enable someone to collect the money for them. The nomination of an agent is an informal arrangement between claimant and agent.

Where an agent is required for a long time an agency card may be obtained from the social security office stating that the named person is authorised to collect the money.

How somebody with an illness or disability can get help to collect or deal with social security benefits. NOTE: For details of your local office check in the telephone book under Jobcentre Plus, social security office or Benefits Agency, or ask at your local
library or advice centre.

A person who is unable to understand that they are giving the power cannot make a valid appointment of an agent, so this method cannot be used to collect a benefit or state pension once the claimant becomes too confused to manage their affairs.

Residents in local authority care homes can nominate the local authority to act as a ‘signing agent’ whereby the local authority takes on the responsibility of cashing benefit orders on behalf of the residents. For further information consult with the Home Manager or ask to see a social worker.

Appointee – This method should be used only if the person is mentally incapacitated. It should never be used solely because the person is physically incapacitated. If someone who is entitled to a social security benefit or allowance is unable to act for themselves, for example because of dementia or because of a temporary mental incapacity following an illness or accident, a representative of the Secretary of State for Work and Pensions (formerly Social Security) – usually the decision makers at the social security office – may, on receiving an application, appoint someone else to exercise the claimant’s right to make claims for and to receive benefits, and to spend them on behalf of the claimant.

It is accepted policy that a close relative who lives with or frequently visits the claimant is the most suitable person to act. If the claimant wishes to continue to collect their own benefits, and providing that they are able to understand the implications of claiming and receiving social security benefits, then the social security office should not give approval for an appointee, or for bulk payments, to an organisation which acts as an appointee for a large number of people.