Mental Capacity Act 2005

What the Mental Capacity Act 2005 means for you

The Mental Capacity Act 2005 (MCA) was created to protect the wellbeing and respect the rights of those who may lack the capacity to make decisions for themselves. If you are concerned about your capacity or that of someone you love, contact our approachable and skilled team today.


Get in Touch

Call Us: 0800 138 0458

Mental Capacity Act SolicitorsThe MCA Five Principles

The MCA helps to provide framework to make any decisions on behalf of someone who is deemed to lack capacity. People who lack capacity can include those who have dementia, a brain injury, suffered a stroke among others. Decisions for somebody else should be made under the five principles of the MCA which are:

  • Always assume someone has capacity, unless it is proven otherwise
  • Take all possible steps to ensure someone can make a decision on their own
  • Do not assume lack of capacity because someone’s decision seems unwise
  • Always act, or decide, for a person without capacity in their best interests
  • Carefully consider options to ensure the least restrictive option is taken

If for some reason disputes arise over a decision, the matter should then be referred to the Court of Protection who will make a final decision based on the MCA and the situation at hand.

The Mental Capacity Test

To determine whether someone lacks the capacity to make their own decisions, the Mental Capacity Act sets out a test. The test will evaluate whether there is an injury or condition that is causing an impairment, or whether it is due to factors such as alcohol or drugs. When taking the test, someone must be able to:

  • understand and retain information relevant to the decision
  • use the information in making the decision, which might include weighing options
  • communicate their decision – this doesn’t have to be verbal communication: it could include other means of communication, such as signing or writing things down.

As the scope of brain impairments and lack of capacity is so broad, it is important that these tests are carried out to ensure that there is no misinterpretation. Although formal tests are administered by professionals, you or others close to your loved one can also carry out informal tests.

It must also be recognised that there is a difference between not being able to make a decision and making an unwise decision. Everyone makes unwise decisions but this does not mean that someone lacks capacity, even if you or others do not agree.

Our Mental Capacity & Health Specialists

Alison Kaye, Court of Protection Solicitor & Director

Alison Kaye

Director & Solicitor Advocate

Michael Kennedy Director & Barrister Switalskis

Michael Kennedy

Director & Barrister

Danielle Smithurst, Court of Protection Solicitor

Danielle Smithurst


Heather Matthews, Mental Health Solicitor, Wakefield

Heather Matthews

Associate Solicitor

Leesa Hullah

Senior Associate

Joel Costa


Amandeep Dosanjh Court of Protection Solicitor York

Amandeep Dosanjh


Emily Park, Court of Protection Lawyer

Emily Park


Rhiannon Moore


Charlotte Bettney, Mental Health Solicitor, Wakefield

Charlotte Bettney

Associate Solicitor

robyn mayoh web

Robyn Mayoh


Robert Davies


Emily Kennett

Trainee Solicitor

Rebecca Wardle

Trainee Solicitor

Georgia McKelvey

Trainee Solicitor

daniel howard image

Daniel Howard


Maddy Boothroyd

Trainee Solicitor

Aqsa Hussain


Josie Clarke


How can Switalskis help me?

Our Court of Protection team are knowledgeable, friendly and committed to ensuring every decision is made in the best interests of you or anyone who lacks capacity.  Our team includes nationally recognised solicitors, who are strong supporters of mental health and social care charities and organisations.

Call us today on 0800 138 0458, or send us a message through our website and we will call you back.

What our clients say

"Switalskis staff provided an excellent service."

Court of Protection Client

"After our first visit everything was well and the transfer of business from one company to another went very smoothly."

Court of Protection Client