Mental Health Day, which this year falls on 10 October, is a time to reflect not only on emotional wellbeing but also on the legal and practical implications that living with mental health can bring. An area often overlooked is mental capacity, the ability to make decisions for yourself.
Under the Mental Capacity Act 2005, individuals are presumed to have capacity unless proven otherwise. However, conditions such as dementia, brain injury, learning disabilities or severe mental illness can impair this ability, sometimes temporarily, sometimes permanently. Mental capacity can affect decisions ranging from what to wear or eat, to more complex choices like managing finances or consenting to medical treatment. Capacity can fluctuate, and someone may be capable of making some decisions but not others, and capable today but not tomorrow.
Mental health law, while running in tandem with the Mental Capacity Act, has wider powers to detain and treat and as such is often considered as a standalone legal framework. It is also important to recognise that having a diagnosed condition does not mean a person lacks capacity. Capacity is a much more complex concept in modern society.
Why does this matter?
When someone loses capacity, either permanently or temporarily due to mental illness, important and urgent decisions may need to be made on their behalf. This is where having someone you trust in place ready to support them make those decisions is important. A Lasting Power of Attorney (LPA) allows a trusted person to make decisions about health and welfare and property and finances if the individual becomes unable to do so themselves. This could include paying bills and co-ordinating care. LPAs are made when a person has capacity, and there are two types:
- Health and Welfare LPA (usable only when the person lacks capacity) and
- Property and Financial Affairs LPA (option to be used whilst the person still has capacity).
Creating an LPA requires the donor (person who needs looking after) to understand the nature and implications of the document, satisfying a legal test of capacity.
If someone does not have the required mental capacity to make an LPA, a family member or professional may need to apply to the Court of Protection for a deputyship order. Whether this is for a one-off decision or for a Deputy to be appointed to manage decisions on an ongoing basis. We will be covering what and how to apply to appoint a Deputy in the upcoming months.
How does this affect benefits?
Mental health challenges and how they affect daily life may make someone eligible for certain welfare benefits, and mental capacity can also affect how these are accessed.
In some cases, benefits like Personal Independence Payment or Universal Credit may be impacted if the person cannot manage their claim without support.
In the absence of an attorney or Deputy, a trusted person can apply to the Department for Work and Pensions to be appointed as an appointee. This allows them to manage the person’s benefits on their behalf and ensure they receive what they are entitled to. This unfortunately does not however allow the appointee authority to manage the person’s bank accounts and property, only an Attorney or Deputy would be able to manage these assets.
How does this affect care and support?
Under Section 117 of the Mental Health Act 1983, individuals detained under certain sections (such as Section 3) are entitled to free aftercare services following discharge from hospital. These services aim to prevent relapse and readmission, and can include supported accommodation, therapy, and social care.
Mental capacity plays a role here too. If someone lacks capacity to engage with their care plan, and there is no Attorney appointed for Health and Welfare, decisions must be made in their best interests, following the principles of the Mental Capacity Act.
Why is this important?
Mental Health Day is also about awareness and educating individuals and families to plan ahead, empowering the individual to be able to continue to live their lives with the relevant support they may need during their life. Understanding mental capacity and its legal implications helps ensure that people access the support they need supported by the people they trust.
Whether it is setting up an LPA, applying to the Court of Protection for an Order or one-off decision, navigating benefits, or accessing the right care and support, early planning and legal advice can make a real difference.
If you require any advice or support in this area, please contact one of our dedicated team.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2025.