Regaining capacity: Legal support to restore autonomy

Regaining capacity means that an individual who was previously unable to make certain decisions is now able to do so independently. This could relate to:

• Making choices about finances, such as managing bank accounts or investments.
• Deciding on health treatments or care arrangements.
• Handling day-to-day living decisions, like housing or employment.

It’s important to note that mental capacity is decision-specific. An individual might regain the ability to make certain decisions but not others, and their capacity might fluctuate over time.

The Mental Capacity Act 2005 provides the foundation for all decisions relating to mental capacity in England and Wales. Key principles include:

1. Presumption of Capacity: Everyone is assumed to have capacity unless proven otherwise.
2. Support Before Decision-Making: All practical steps must be taken to help a person make their own decisions before concluding they lack capacity.
3. Decision-Specific Assessment: Capacity is judged on the ability to make a specific decision at a specific time, not on general assumptions about a person’s condition.

These principles ensure that the process respects an individual’s autonomy while offering protection where needed and the least restrictive option available must be taken.

The process of regaining capacity often involves:

• Medical Rehabilitation: Treatment or therapy aimed at improving cognitive functions or addressing underlying health conditions.
• Supportive Environment: Assistance from family, carers, or professionals to build confidence and decision-making abilities.
• Reassessment: A formal capacity assessment is conducted to determine whether the individual can understand, retain, weigh up, and communicate decisions.

Note: Regaining capacity can be a highly complex process involving various factors and can differ from person to person.

A mental capacity assessment plays a crucial role in determining whether someone has regained the ability to make decisions. It examines:

• Understanding: Can the individual comprehend the relevant information about the decision?
• Retention: Can they retain that information long enough to make a decision?
• Weighing up: Are they able to consider the advantages, disadvantages, and consequences of their options?
• Communication: Can they express their decision in a way that can be understood?

These assessments are often carried out by medical or mental health professionals and are central to decisions about discharging deputyships.

Regaining capacity is not always straightforward. Some individuals may have partial capacity, meaning they can make some decisions but not others. For example, someone might handle day-to-day expenses but require assistance with complex financial matters.

Capacity can also fluctuate, influenced by health, medication, or external stressors. This makes regular reassessment essential to ensure the individual’s rights are respected.

The process of regaining capacity impacts not only the individual but also their families, carers, and legal representatives. Clear understanding of the legal and practical implications helps ensure:

• The individual’s autonomy is restored appropriately.
• Decision-making frameworks like deputyships are adapted or discharged.
• Any disputes about capacity are resolved with evidence and fairness.

This foundational understanding ensures that everyone involved can take the right steps to support the individual as they transition back to independent decision-making.

Deputies have a duty to act in the best interests of the individual they support. When mental capacity is regained, their role must shift to ensure:

• Encouraging independent decisions: Deputies must foster autonomous decision-making wherever possible, even for decisions within their legal remit.
• Ensuring a gradual transition: This might involve collaborating with medical professionals, carers, and family members to support the individual in taking control over specific areas of their life.
• Acting within legal boundaries: Deputies cannot continue to act on decisions the individual is now able to make independently.

Discharging a deputyship order is a legal process that involves ending the court-appointed authority of the deputy. The steps include:

1. Obtain medical evidence: A formal capacity assessment must confirm the individual has regained capacity to make decisions within the scope of the deputyship order.
2. Prepare an application to the Court of Protection: This application must include evidence of regained capacity and supporting documentation from medical professionals.
3. Court review & decision: The Court of Protection will assess the application and medical evidence. If satisfied, it will issue an order discharging the deputyship.

Once the order is discharged, the individual regains full control over the areas previously managed by the deputy.

In some cases, it might still be appropriate to retain a deputyship, even if capacity is partially regained. For example:

• Fluctuating Capacity: If the individual’s capacity varies, ongoing support might remain necessary for specific decisions.
• Complex Financial Matters: For areas requiring advanced expertise, such as investments or managing large sums, continued assistance might still be beneficial.

Regaining capacity is not always straightforward, and challenges may arise, such as:

• Disputes Over Capacity: Medical professionals or family members might disagree on whether the individual has fully regained capacity. In such cases, additional evidence or court intervention may be required.
• Emotional Adjustment: Families and deputies may find it difficult to step back after years of managing someone’s affairs. This requires careful guidance and planning.

The process of restoring autonomy involves more than just legal formalities. It requires understanding, careful planning, and clear communication between all parties involved. Professional legal advice ensures that the process is carried out lawfully and with respect for the individual’s rights.

• Formal capacity assessment: A qualified medical professional, such as a psychiatrist, GP, or neurologist, must conduct an assessment to determine if the individual has regained capacity.
• Comprehensive report: The report should detail the individual’s ability to understand, retain, and weigh up information needed to make specific decisions. This evidence forms the cornerstone of any application to discharge a deputyship.

• Deputyship discharge: For deputies, an application must be submitted to the Court of Protection, along with the medical evidence and any relevant documents.
• Include supporting information: It’s important to provide details about the individual’s progress, rehabilitation, and current ability to make independent decisions.

• Judicial scrutiny: For deputyship cases, the Court of Protection will review the medical evidence and other submitted documents to ensure the application is valid.
• Court order: If the court is satisfied that the individual has regained capacity, it will issue an order discharging the deputyship or confirming that the powers of the deputy are no longer required.

• Return of authority: Once the discharge or revocation is complete, the individual regains full control over their decisions. Deputies must ensure a smooth handover of records, funds, and responsibilities.
• Ongoing support: In some cases, families or carers might still provide informal support during the adjustment period, even if formal authority is no longer in place.