Disability Information UKPlain-language information, rights and support

Advocacy, mental capacity and decision-making

Support to make and communicate your own decisions, and how decisions are made for you if you lack capacity.

Sample content. This summarises official sources listed below. It is information, not legal advice.

Jurisdiction
UK-wide
Date last checked
1 August 2026
Date last updated
1 August 2026
Next review due
1 February 2027
Version
1.0

Key points

  • In England and Wales, the Mental Capacity Act 2005 assumes everyone has the right to make their own decisions unless it is shown otherwise, and a lack of capacity must relate to a specific decision at a specific time, not be assumed generally.
  • The Mental Capacity Act requires all practicable steps to help someone make their own decision before concluding they lack capacity, such as using accessible information, communication aids, or choosing a better time and place.
  • If someone is assessed as lacking capacity for a particular decision, any decision made for them must be in their 'best interests', taking into account their past and present wishes, feelings, beliefs and values, so far as these can be worked out.
  • In Scotland, the Adults with Incapacity (Scotland) Act 2000 provides a similar framework, but decisions must satisfy specific legal principles including benefit to the adult and taking account of their wishes, and often require formal powers such as guardianship or intervention orders granted by a sheriff court.
  • In Northern Ireland, capacity and best-interests decisions have historically been governed by a mix of common law and the Mental Health (Northern Ireland) Order 1986, alongside the Mental Capacity Act (Northern Ireland) 2016, which is being brought into force in stages and will eventually provide a single framework covering both capacity and, in some circumstances, compulsory treatment.
  • Lasting Power of Attorney (England and Wales), Continuing and Welfare Power of Attorney (Scotland), and Enduring Power of Attorney arrangements (Northern Ireland) let a person choose in advance who can make decisions for them if they later lose capacity; the exact documents and registration bodies differ by nation.
  • Independent Mental Capacity Advocates (England and Wales), and equivalent independent advocacy support in Scotland and Northern Ireland, must be involved in some serious decisions, such as major medical treatment or a change of long-term accommodation, when someone lacks capacity and has no one else appropriate to consult.
  • A worked example: before deciding that someone with a learning disability lacks capacity to decide where to live, staff must first try easy-read information, extra time, and involving a trusted person to help communication; only if these steps do not enable a decision should a formal capacity assessment for that specific decision be carried out.

What you can do

  • Ask for information in an accessible format and extra time to think before being asked to make an important decision.
  • Ask whether you are entitled to an independent advocate, particularly for health, care or safeguarding decisions.
  • Consider setting up a Lasting Power of Attorney, Power of Attorney (Scotland) or Enduring Power of Attorney (Northern Ireland) while you have capacity, so people you trust can act for you later if needed.
  • If you disagree with a best-interests or capacity decision made about you or a family member, ask for the reasons in writing and get advice from a solicitor specialising in mental capacity or community care law.
  • In England and Wales, decisions can be challenged in the Court of Protection; in Scotland, through the sheriff court; in Northern Ireland, seek advice on the current routes as the law is transitioning.
  • Contact a local or national advocacy organisation, or SEAP, VoiceAbility, POhWER or a similar provider, to ask about free advocacy support in your area.

Sources