Mental Capacity Act and deprivation of liberty: questions families and carers ask

AGNI is the shorthand name for the Supreme Court judgment A Reference by the Attorney General for Northern Ireland [2026] UKSC 16, handed down on 2 June 2026. It concerns when care and treatment arrangements amount to a deprivation of liberty under Article 5 of the European Convention on Human Rights.

For more than a decade, professionals often used the Cheshire West acid test as the main way of identifying a deprivation of liberty. AGNI held that this two-part test is no longer sufficient or determinative on its own. The person's concrete situation must be considered as a whole.

There is no longer a single checklist that decides the issue. Professionals must examine the person's concrete situation, including the type, intensity, duration, effect and manner of the restrictions; the setting and purpose of the arrangements; the person's own physical or medical limitations; and whether the person has sufficient awareness to communicate genuine acceptance or objection. Compliance, passivity or an absence of protest must not automatically be treated as consent.

No. The statutory safeguards and routes for authorisation remain in place. AGNI changes the legal analysis used to decide whether Article 5 is engaged; it does not abolish DoLS, remove the need for lawful authority, or reduce the duty to scrutinise restrictive care arrangements.

Yes. AGNI confirms that a person who lacks capacity under domestic mental-capacity law may still have enough basic awareness to express genuine acceptance of, or objection to, particular care arrangements for Article 5 purposes. This is a separate legal question from an MCA capacity assessment. Apparent contentment, compliance or lack of protest is not enough by itself.

It means enough basic understanding of the essential nature of the arrangements to be able to communicate whether the person accepts or objects to them. It is not necessarily the same as having capacity under the Mental Capacity Act, and it must be assessed from the person's own communication, behaviour and circumstances rather than presumed.

It may or may not. Being settled or appearing happy does not automatically mean there is no deprivation of liberty. Professionals should consider the whole situation, including the person's awareness, wishes, experience of the restrictions and any signs of objection, alongside the nature and effect of the arrangements.

Ask for the objection to be recorded and explored. Objection may be verbal or behavioural and may indicate that the person does not give valid Article 5 consent. The care plan, capacity and best-interests work, advocacy, legal authorisation and route of challenge should all be reviewed as appropriate. You can also see the questions on objections in the Restrictions and Legal Safeguards topics.

You may wish to ask: How has AGNI been considered in my relative's situation? What restrictions are currently in place? How is my relative's own voice being heard? Is my relative objecting to the arrangements in any way? What legal safeguards currently apply? When will the arrangements be reviewed? Is this still the least restrictive way of providing care and support?

Not necessarily. The decision does not remove people's rights. However, it does mean professionals and courts are working within a new legal framework, and the practical impact will continue to develop as new guidance and case law emerge.

Ask. A reasonable question is: can you explain how AGNI has been considered in my relative's situation and whether it changes the legal safeguards that apply? Professionals should be able to explain their thinking in plain English and discuss any reviews that are planned.

AGNI changes the legal test, not the person's basic rights. Good practice still requires careful attention to the person's voice, awareness, wishes and objections; the real effect of restrictions; lawful authority; regular review; and the least restrictive way of meeting need. Silence, compliance or apparent contentment should never be used as a shortcut.

Capacity is not decided by whether someone can chat, remember isolated facts or appear confident. For the particular decision, professionals must consider whether the person can understand, retain, use or weigh the relevant information and communicate a decision. Any inability must be because of an impairment of, or disturbance in, the functioning of the mind or brain. Capacity is decision-specific and time-specific.

No. People have the right to make decisions that others disagree with. Making a risky or unwise decision does not automatically mean a person lacks capacity.

The person responsible for making or implementing the particular decision will usually need to be satisfied about capacity. This is often a health or social care professional, but it depends on the decision and circumstances. Before concluding that someone lacks capacity, all practicable steps must be taken to support them to decide for themselves.

No. A capacity assessment is not an exam. It is a structured assessment of whether, for a particular decision at a particular time, the person can understand, retain, use or weigh the relevant information and communicate their decision, and whether any inability is caused by an impairment or disturbance of mind or brain.

Yes. Capacity is decision-specific. A person may be able to make daily decisions independently but need support with more complex decisions about care, treatment, finances or accommodation.

No. Wanting to go home, taking a risk or disagreeing with professionals does not itself show a lack of capacity. The assessment must focus on whether he can understand, retain, use or weigh the relevant information and communicate the decision, with appropriate support.

People can agree with support and still need a capacity assessment for a specific decision. Professionals need to be satisfied that the person can understand and make that particular decision for themselves.

Share what you know. Families are often best placed to identify how someone communicates, what support helps them understand information and how they express choices. This information can be vital to good assessments.

Capacity must be considered at the time the decision needs to be made. Evidence from both better and worse periods may help explain fluctuation. If the decision can safely and reasonably wait, professionals should consider making it at a time when she is better able to participate.

Yes. Tiredness, illness, medication, anxiety, pain and some health conditions can all affect decision-making. Timing can make a significant difference.

No. A diagnosis does not determine capacity. Many people with dementia continue to make decisions for themselves, particularly when information is presented in a way they can understand.

Sometimes. Where capacity is likely to improve and delay is practicable and consistent with the person's interests, the Mental Capacity Act requires consideration of whether the decision can wait. Urgent decisions may still need to be made without delay.

Raise your concerns. Explain why you believe the assessment may not reflect the person's usual abilities and provide examples of times when they are better able to understand and communicate.

Yes. Capacity can improve. Assessments should reflect the person's current abilities, not assumptions based on previous decisions or diagnoses.

They should look at how the person's condition affects them over time, gather information from those who know them well and consider whether there are particular times, settings or circumstances when the person can participate more effectively.

Yes. Familiar people, environments and communication styles can make a significant difference. Families can often help professionals understand how best to support the person to make their own decisions.

Yes. Some medications may affect concentration, alertness, memory or the ability to process information. Professionals should consider any factors that might be influencing the person's ability to make decisions.

Capacity is decision-specific. A person may be able to make some decisions independently while needing support or decision-making on others. The focus should always be on the particular decision being considered.

There is no fixed timetable. If there is evidence that a person's ability to make decisions has improved, worsened or changed, professionals should consider whether a fresh assessment is needed.

Yes. Even where a best interests decision is needed, the person should be involved as much as possible. Their views, wishes and feelings remain important, particularly during times when they can communicate them more clearly.

Often, yes. If a person's ability to make decisions changes over time, support arrangements and restrictions may also need to be reviewed to ensure they remain necessary, proportionate and lawful.

Best interests is about making a decision on behalf of someone who cannot make that particular decision for themselves. It is not simply about keeping someone safe. The decision should take account of the person's wishes, feelings, values, beliefs, relationships and what matters to them as an individual.

The relevant decision-maker makes the decision. This may be a professional, a Health and Welfare Attorney acting within a valid and registered LPA, a court-appointed deputy acting within their authority, or the Court of Protection. The person must be involved as fully as possible, and the decision-maker must consult the people the Act requires or identifies as appropriate.

No. The Mental Capacity Act requires decisions to be person-centred. Professional views are important, but so are the person's own wishes, feelings, beliefs and values.

Yes. A person does not lose their voice because they lack capacity for a particular decision. Their wishes, feelings and preferences should remain central to the decision-making process.

Family members and others who know the person well should usually be consulted where it is practicable and appropriate, because they may hold important information about the person's wishes, feelings, beliefs and values. Family relationship alone does not give automatic decision-making authority or an unrestricted right to confidential information.

Disagreement does not automatically stop a decision being made. Professionals should listen carefully to all views, explore the reasons behind different opinions and focus on what is most likely to reflect the person's own wishes and interests.

Ask how the decision was reached, what alternatives were considered, who the legal decision-maker is and how the person's wishes and feelings were taken into account. You can raise concerns, request review, seek advocacy or independent advice, and in serious disputes obtain legal advice about the Court of Protection. Your precise legal role depends on the circumstances and any formal authority you hold.

Not necessarily. Safety is important, but so are happiness, independence, relationships, personal identity, culture, faith, hobbies and quality of life. Best interests involves balancing all of these factors.

Yes. Best interests decisions should take account of the person's personality, values and approach to life. A decision should not be based solely on what others would choose for themselves.

No. Even where someone cannot make the final decision themselves, professionals should still involve them as much as possible and take seriously anything they say or communicate about their wishes.

Past wishes and feelings can be very important. What the person previously said, believed or valued should help inform decisions being made on their behalf today.

Communication is not limited to words. Behaviour, gestures, facial expressions, routines, reactions, signs of comfort or distress and information from people who know the person well can all help build a picture of what matters to them.

It should not. A best interests meeting should be an opportunity to gather information, hear different perspectives and explore options before a decision is reached.

Wherever possible, yes. Some people attend all or part of the meeting, while others are supported to share their views in different ways. The aim is always to involve the person as much as possible.

Yes. An advocate can help ensure the person's wishes, feelings and rights are considered and may provide support if the person has difficulty participating in discussions.

Yes. Families, advocates and professionals can raise concerns if they believe a decision has not followed the Mental Capacity Act or does not properly reflect the person's wishes and rights.

Important decisions should not simply remain in place forever. Reviews should take place when circumstances change, new information becomes available or there is evidence that the person's needs or wishes may be different.

Yes. What the person previously said, believed or valued may be highly relevant. Best interests decisions should not focus only on what is happening now but also on who the person is and what has mattered to them throughout their life.

Yes. Decisions should be reviewed when circumstances change, new information becomes available or the person's needs and wishes become clearer. Best interests is an ongoing process, not a one-off event.

Best interests is not about taking control away from someone. It is about making the best possible decision when they cannot make that decision themselves, while keeping their rights, wishes, dignity and individuality at the centre of everything.

A person may be deprived of liberty even when they appear happy or settled, but after AGNI that appearance is part of a wider assessment rather than irrelevant. Professionals must consider the person's concrete situation as a whole: the nature, intensity, duration, effect and manner of the restrictions; the setting and purpose; the person's own physical or medical limitations; whether they have sufficient awareness to communicate genuine acceptance or objection; and other relevant circumstances. Continuous supervision and control and freedom to leave remain relevant but are not a complete test.

No. After AGNI, genuine Article 5 consent cannot be inferred merely from silence, passivity, compliance, difficulty communicating or an absence of attempts to leave. Professionals must consider whether the person has sufficient awareness of the essential arrangements and is actually communicating acceptance. Where there is serious doubt, consent should not be assumed.

Yes. Physical restraint is not required. The question is whether, looking at the arrangements as a whole, the person is objectively deprived of liberty under Article 5. Supervision, control and freedom to leave remain relevant, but so do the setting, duration, purpose, impact, the person's own limitations, and any genuine acceptance or objection.

Article 5 of the European Convention on Human Rights protects the right to liberty and security. It requires any deprivation of liberty to have a lawful basis, appropriate safeguards and a practical route to challenge. It applies to care and treatment arrangements as well as prisons or police detention.

Safety matters, but so do freedom, dignity and quality of life. Families can ask whether restrictions are truly necessary, whether alternatives have been explored and what might need to change for restrictions to be reduced.

Yes. Restrictions should always be the least restrictive option available. They should be reviewed regularly rather than simply continuing because they have always been there.

Restrictions should be reviewed whenever circumstances change and at regular intervals to ensure they remain necessary, proportionate and lawful.

Families have the right to ask questions, request explanations and challenge decisions. Ask why the restrictions are needed, what alternatives were considered and how often the arrangements will be reviewed.

Not always. The Mental Capacity Act recognises that people can take reasonable risks and make choices others may not agree with. The aim is usually to balance safety with independence, dignity and quality of life.

Yes. Objection can be spoken or communicated through behaviour, distress, resistance, withdrawal, repeated attempts to leave or other changes. After AGNI, objection is especially important when considering whether valid Article 5 consent exists. It should be recorded, explored and reflected in care planning, safeguards and review.

A deprivation of liberty is a serious interference with a person's Article 5 rights. It may nevertheless be lawful where the legal requirements are met, the arrangements are necessary and proportionate, lawful authority is in place, effective safeguards and review exist, and the person has a practical route to challenge.

A Health and Welfare Attorney cannot simply authorise a deprivation of liberty in place of the required legal process. Their authority and views may be highly relevant to care, residence and treatment decisions, but any deprivation of liberty must still have a lawful basis and appropriate Article 5 safeguards. AGNI concerns the person's own Article 5 consent and does not create substituted consent by an attorney.

An advocate supports the person to understand information, communicate their views and protect their rights. Different schemes have different roles and legal tests, including general independent advocacy, an Independent Mental Capacity Advocate (IMCA), Care Act advocacy, a Relevant Person's Representative under DoLS and representation in Court of Protection proceedings.

You can ask the social worker, care coordinator, healthcare professional or care provider about advocacy support. You can also contact local advocacy services directly. If you think someone should have been offered an advocate but has not been, ask for this to be reviewed.

Yes. Families, carers and the person themselves can raise the issue of advocacy at any stage.

Families provide invaluable support, but an independent advocate can offer an additional safeguard by focusing solely on the person's rights, wishes and involvement in decisions.

Not necessarily. An advocate's role is to represent the person's wishes and rights rather than the views of family members or professionals.

Yes. Skilled advocates work with families, carers and professionals to understand how a person communicates through behaviour, routines, gestures, signs of comfort or distress and other non-verbal means.

It depends on the decision and legal framework. The Care Act test of substantial difficulty and no appropriate person is different from the MCA rules for an IMCA, and different again from representation under DoLS or in Court proceedings. Ask the responsible professional to identify which advocacy scheme has been considered and why.

Yes. Advocates can ask questions, request information, raise concerns and support challenges where appropriate. Their role is not to make decisions but to help ensure the person's rights and wishes are properly considered.

Good advocates spend time getting to know the person. They may observe how the person communicates, speak with family members and learn about the person's history, preferences, routines and relationships.

Yes. If you are concerned that the person's wishes, feelings or rights are not being fully considered, you can raise this with the local authority, social worker, care provider or health professional involved.

Advocacy can play an important role when someone wants to challenge restrictive care arrangements. Advocates can help people understand their rights, access information and seek reviews or legal advice where appropriate.

Professionals should consider whether a person would benefit from advocacy when important decisions are being made. If advocacy has not been discussed and you think your relative may need support to be involved, ask the team responsible for their care how this has been considered.

Explain why you think the person may need support to understand information, communicate their wishes or participate in decisions about their care and treatment. It can be helpful to give examples of situations where they have struggled to make their views known or where you are concerned their voice is not being fully heard.

They may have specific rights to representation and advocacy, depending on the legal route. Under DoLS this may include a Relevant Person's Representative and, in some circumstances, an IMCA. Court-authorised arrangements may involve a litigation friend, solicitor or other representative. Ask for a clear explanation of the person's rights and route of challenge.

Legal safeguards are protections designed to make sure that decisions made for a person who lacks capacity are lawful, necessary and properly reviewed. They help balance safety with a person's rights, freedoms and dignity.

Sometimes people need care, treatment or support that involves restrictions on their freedom. Legal safeguards provide independent oversight to help ensure those restrictions are justified and are not more restrictive than necessary.

Restrictions should not simply be decided by one professional or organisation. Depending on the circumstances, there are legal processes that involve independent scrutiny, reviews and rights of challenge.

Professionals should assess the person's capacity for the relevant decisions, take all practicable steps to support decision-making, consider less restrictive alternatives, complete a post-AGNI Article 5 assessment of the person's concrete situation, and ensure that any deprivation is necessary, proportionate and lawfully authorised. The person's wishes, awareness, acceptance or objection and rights must remain central.

No. Deprivation of liberty safeguards are not a punishment. They exist to protect people who need a high level of support and supervision but are unable to consent to those arrangements themselves.

Families should normally be informed when significant restrictions are being considered or are in place. If you are unsure, ask the social worker, care provider or healthcare team what legal authorisations or safeguards apply.

Absolutely. Families can ask why restrictions are needed, what alternatives were considered, how risks were assessed and when the arrangements will be reviewed.

Raise your concerns. Ask why each restriction is necessary and whether there are less restrictive ways of supporting the person's safety and wellbeing. Restrictions should always be proportionate to the risk involved.

Objections should be taken seriously, whether they are spoken, shown through behaviour or communicated in other ways. Professionals should consider how objections affect care planning, legal safeguards and review arrangements.

Yes. Article 5 requires a practical and effective route to challenge detention or confinement. The route depends on the legal framework and may involve a DoLS review or section 21A application, an application to the Court of Protection, advocacy, a representative or legal advice. Objection should never be dismissed simply because the person lacks MCA capacity.

No. Many concerns can be resolved through discussion, reviews, advocacy support and care planning. Court involvement is usually considered when there are significant disputes or particularly important decisions to be made.

Disagreement is not uncommon. Families have the right to ask questions, request reviews and seek independent advice. Good practice involves listening to different views and explaining how decisions have been reached.

This depends on the circumstances and the person's rights to privacy and confidentiality. If you are closely involved in supporting the person, ask how information can be shared and explained.

Safeguards should not simply continue indefinitely. Reviews should consider whether the restrictions remain necessary, whether circumstances have changed and whether a less restrictive approach is now possible.

You may want to ask questions if restrictions seem to increase without explanation; nobody can explain the legal basis for the arrangements; the person's views are being ignored; reviews are not taking place; family members are excluded from important discussions without explanation; or no consideration appears to have been given to less restrictive alternatives.

A useful question is: How are this person's rights, wishes and freedoms being balanced against the need to keep them safe? Good Mental Capacity Act practice should always be able to answer that question clearly.

The Court of Protection is a specialist court that makes decisions about mental capacity and protects the rights of people who may be unable to make certain decisions for themselves. It helps ensure that important decisions are lawful, fair and focused on the person's rights and wellbeing.

Most decisions are made without going to court. The Court is usually involved when there is a serious disagreement, a particularly complex decision, concerns about restrictions on a person's liberty, or uncertainty about what should happen next.

Not necessarily. Sometimes everyone involved agrees that the Court is the best place to make an independent decision about a difficult situation. The Court's role is to consider the evidence and protect the person's rights.

Yes. The Court expects the person's wishes, feelings, values and preferences to be considered. Depending on the circumstances, the person may be represented by a litigation friend, solicitor, advocate or other appointed representative.

Objections should always be taken seriously. In some situations, the Court may be asked to decide whether care arrangements, restrictions or living arrangements are lawful and in the person's best interests.

Yes. The Court can make decisions about accommodation, care arrangements and other welfare issues where a person lacks capacity and there is disagreement or uncertainty about what should happen.

Yes. In some complex or disputed cases, the Court may be asked to make decisions about treatment, care plans or serious medical interventions.

The Court can consider different views from family members, professionals, advocates and others involved in the person's life. Its role is not to decide who is right but to determine what is lawful and in the person's best interests.

In some circumstances, yes. If you are concerned about important decisions affecting your relative, it may be possible to seek legal advice about whether an application to the Court is appropriate.

This depends on the circumstances and the type of application. If Court involvement is being considered, it is sensible to seek advice about costs and available support at an early stage.

No. Care homes and hospitals may use DoLS where the statutory conditions are met. Other settings, significant disputes, objections or complex arrangements may require Court of Protection authorisation or scrutiny. After AGNI, the first question is whether the arrangements amount to a deprivation of liberty under the new multifactorial approach.

The Court exists to provide independent scrutiny when necessary. If there are serious concerns about decision-making, restrictions, capacity assessments or best interests decisions, legal advice may help identify whether Court involvement is appropriate.

You may wish to ask: Why is Court involvement being considered? What decision does the Court need to make? What are the person's wishes and feelings? How will the person's voice be represented? Are there alternatives to Court proceedings? What happens next and how long is the process likely to take?

Not necessarily. Court involvement does not mean anyone has done anything wrong. Often, it means there is an important decision to make and an independent judge is being asked to ensure the person's rights, wishes and legal protections are properly considered.

The Court's role is not to take away people's rights. Its role is to protect them. At the heart of every case should be one key question: What does this person need to ensure their rights, wishes, dignity and wellbeing are properly respected?

A Lasting Power of Attorney, or LPA, is a legal document through which a person appoints trusted attorneys to make specified decisions. A Health and Welfare LPA can be used only when the donor lacks capacity for the particular decision. A Property and Financial Affairs LPA may, if the document permits and the donor agrees, be used while the donor still has capacity. The donor must have capacity when making the LPA.

No. Many people create an LPA while they are fully able to make their own decisions. The document is there in case support is needed in the future.

This depends on the type and wording of the LPA. A Property and Financial Affairs LPA covers financial matters. A Health and Welfare LPA covers specified care, residence and treatment decisions only when the person lacks capacity for that decision. Attorneys must act within their authority, follow any binding instructions and comply with the Mental Capacity Act.

No. An attorney only has the authority granted by the LPA. The person should still be supported to make their own decisions wherever possible.

No. Many people are surprised to learn that being a husband, wife, partner, son or daughter does not automatically give someone legal authority to make decisions on another person's behalf.

If you are unsure, ask the person, family members, solicitors or professionals involved in their care. A registered LPA is usually available to those who need to rely upon it.

A Health and Welfare LPA may have important legal authority in decisions about care, treatment and support. Professionals need to know whether somebody has been legally appointed to make decisions in these areas.

Yes. Attorneys should be involved in discussions and can challenge decisions if they believe they do not reflect the person's wishes, rights or best interests.

Not always. While attorneys have important legal powers, disagreements can sometimes arise. In complex situations, advice may be sought and some matters may ultimately need to be considered by the Court of Protection.

Disagreements should be explored through discussion and information sharing where possible. The focus should remain on the person's wishes, rights and best interests rather than the preferences of others.

A Health and Welfare Attorney may be able to refuse treatment if the LPA gives the relevant authority and the person lacks capacity for that treatment decision. Special rules apply to life-sustaining treatment: the LPA must expressly give the attorney that authority. An attorney cannot demand treatment that clinicians do not consider clinically appropriate.

Concerns should be raised promptly. Ask questions, seek advice and discuss the situation with the professionals involved. There are legal safeguards designed to protect people from misuse of powers.

A person who has capacity can revoke an LPA. An existing LPA cannot usually be edited simply to change attorneys, powers or instructions; the person will normally need to revoke all or part of it as appropriate and make a new LPA.

Decisions may still need to be made under the Mental Capacity Act. Professionals will usually consult family members and others who know the person well. In some situations, an application to the Court of Protection may be required.

You may wish to ask: Is there a valid and registered LPA? Is it for Health and Welfare, Property and Finance, or both? What authority has been given to the attorney? Has the person been supported to make their own decision first? How have the person's wishes and feelings been taken into account? What happens if there is disagreement? Are any legal safeguards or reviews required?

An LPA is not about taking control away from someone. It is a way of ensuring that, if a person cannot make certain decisions in the future, decisions can be made by someone they chose and trusted, while remaining guided by the principles of the Mental Capacity Act.

An LPA cannot be used until it has been registered by the Office of the Public Guardian. Either the donor or an attorney may apply to register it. Signing the document does not by itself give the attorney authority to act.

Not necessarily. The LPA must usually be registered before it can be relied upon. If you are unsure whether registration has taken place, ask to see the registered document or check with the Office of the Public Guardian.

Generally, no. Professionals will normally need evidence that the LPA has been registered before relying on an attorney's authority. If important decisions cannot wait, they may need to be made using other legal processes under the Mental Capacity Act.

A validly executed LPA can still be registered after the donor has lost capacity, and an attorney can apply. If the document contains a defect that cannot be corrected, the donor may no longer be able to make a replacement LPA and legal advice or a Court of Protection application may be needed.

Yes. Even if you do not have legal authority as an attorney, professionals should usually seek the views of family members and others who know the person well. Your knowledge of the person's wishes, values and preferences may be important when decisions are being made.

Check whether it has already been registered and do not assume it can be used. If it is valid but unregistered, the donor or an attorney can apply to register it. If there may be errors or the donor has lost capacity, seek advice promptly because some defects cannot be corrected after capacity is lost.

Ask to see the registered document or speak to the attorney, solicitor or professional involved. If there is uncertainty, the Office of the Public Guardian may be able to provide information about the registration status.

Signing an LPA and registering an LPA are two different steps. Until registration has taken place, an attorney will not usually have the legal authority to make decisions on the person's behalf.

An Enduring Power of Attorney, or EPA, is an older legal arrangement that was replaced by Lasting Powers of Attorney in October 2007. New EPAs can no longer be created, but an EPA that was properly completed before October 2007 may still be valid and legally recognised.

An EPA only covers decisions about property and financial affairs. It does not give authority to make health, welfare, care or treatment decisions. These decisions can only be covered by a Health and Welfare LPA.

Yes, if it was validly made and signed before 1 October 2007. With the donor's permission it may be used before registration while the donor has capacity. It must be registered when the donor starts to lose capacity, and it covers property and financial affairs only.

An EPA may be used, with the donor's permission, while the donor still has capacity. The attorney must apply to register it as soon as the donor starts to lose mental capacity, and it must be registered to continue being used after capacity is lost.

No. An EPA only relates to property and financial matters. Decisions about care, support, treatment and accommodation must be made through other legal processes, including the Mental Capacity Act and, where applicable, a Health and Welfare LPA.

The attorney may be able to help manage financial matters, but they will not have legal authority to make health and welfare decisions. Professionals should still consult family members and those who know the person well, but care and welfare decisions will be made under the Mental Capacity Act where the person lacks capacity.

Check the date and title of the document. An Enduring Power of Attorney will usually have been signed before October 2007 and will relate only to financial affairs. If you are unsure, seek advice from the Office of the Public Guardian or a legal professional.

No. An EPA cannot be converted, upgraded or amended into an LPA. They are two separate legal documents created under different legal frameworks. If someone wants an LPA, they must make a new LPA while they still have the mental capacity to do so.

Not necessarily. A valid EPA can still be used for property and financial affairs. However, an EPA cannot cover health and welfare decisions. If someone wants trusted people to make decisions about care, treatment or where they live in the future, they would need to create a separate Health and Welfare LPA while they still have capacity.

Yes. Some people choose to keep their existing EPA for financial matters and create a Health and Welfare LPA to cover decisions about care and treatment. Others choose to create new LPAs for both financial and health matters.

If the person no longer has capacity to make an LPA, it is generally too late to create one. The EPA may still be used for financial decisions, subject to registration requirements, but it cannot be expanded to cover health and welfare decisions. Decisions about care and treatment will usually be made under the Mental Capacity Act, and in some situations the Court of Protection may become involved.

Not necessarily. A properly created EPA remains legally valid for financial matters. However, LPAs offer wider options because they can cover both Property and Financial Affairs and Health and Welfare decisions.

Check that it was made before October 2007 and keep it in a safe place. If it needs to be used because the person is losing or has lost the ability to manage their finances, seek advice about registration requirements and next steps.

Many older EPAs remain valid and legally effective, but they only cover property and financial affairs. They do not give anyone authority to make decisions about health, care, treatment or deprivation of liberty arrangements.

An EPA cannot be turned into an LPA. If a person wants someone to make future health and welfare decisions on their behalf, they must create a Health and Welfare LPA while they still have the capacity to do so. This is often an important conversation to have before a crisis occurs.

This question keeps the focus on the first MCA principle: people should be supported to make their own decisions wherever possible.

This question helps keep best interests discussions rooted in the person's own values, wishes and identity.

This question helps test whether the least restrictive option has genuinely been considered.

This question is useful where the person does not use speech, appears distressed, objects or communicates in less obvious ways.

Those who know the person well may hold important information about the person's history, wishes, routines and preferences.

Good MCA practice should be able to explain why the proposed option is necessary and why less restrictive alternatives would not meet the person's needs.

This is particularly important where capacity may fluctuate or where illness, medication, tiredness or distress is affecting the person.

Decisions and restrictions should not simply continue without review. Reviews help ensure that arrangements remain necessary, proportionate and lawful.

You may find it helpful to ask: What would this person choose if they were able to decide for themselves? How have their wishes and feelings been identified? What alternatives have been considered? Is this the least restrictive option? How will this decision affect their quality of life? Who has been consulted? When will the decision be reviewed?

You may wish to ask: Was the assessment completed at the best time for the person? What support was offered to help them make the decision? Is there evidence that capacity changes over time? Could the decision wait until the person is better able to participate? When will capacity be reviewed again?