Mental Capacity and Planning Ahead
We all hope to live full lives without the expectation of mental incapacity. However, it’s a common misconception that this is only a concern for the elderly population, or those who have been diagnosed with dementia.
The truth is that mental incapacity can affect any of us, at any age. Having provisions in place is critical in protecting your wishes and providing practical support to your loved ones.
Mental incapacity can be temporary or permanent, and can arise as a result of:
- An accident
- Medical negligence
- A sudden illness, such as a stroke
- A progressive illness, such as dementia or Parkinsons
- Severe mental health issues
- Severe learning difficulties
People often view this type of planning in a similar way to insurance. You hope you won’t need to invoke these plans, but having them in place provides significant peace of mind to you, and practical assistance to your loved ones.
Lasting Powers of Attorney
A Lasting Powers of Attorney (LPA) is the most common method of planning ahead. It allows you to choose a trusted person (or multiple people) to act on your behalf if you become unable to make decisions for yourself. For example, if you were in hospital and unable to manage your bank account, pay your mortgage or other bills, having an LPA in place would allow the management of your affairs to continue.
There are two types of LPA – one covering financial decisions, and one covering welfare decisions.
LPAs are critically important but often overlooked by people who believe their will achieves the same purpose (it doesn’t!).
If a person has lost mental capacity to put an LPA in place, the only option is for their loved ones to apply for Court of Protection Deputyship. This is a much lengthier and costlier process and removes the autonomy of the person to choose who they want to act for them.
In short, an LPA is a relatively inexpensive way to ensure you have peace of mind over the management of your finances and health decisions if something were to happen to you. Read more about LPAs here.
Advanced Decision (“Living Will”)
An Advanced Decision (sometimes called a Living Will) is a declaration where you can refuse specific care or treatment that you do not want to receive in future.
A properly executed Advanced Decision is legally binding and must be followed by medical practitioners. It must be made while you have mental capacity, and it must be specific about the circumstances when it will apply and the treatment which is being refused.
An example is someone may specify that if they have a terminal illness, they wish to refuse treatment which would prolong their life but not improve the quality of life, for instance CPR or artificial nutrition.
Advanced Statement
An Advanced Statement is a declaration where you state your wishes and preferences about your future care.
An Advanced Statement usually covers the type of care/treatment you wish to receive. It can also include where you want to receive care (home, hospital, other), who you would like to be consulted about your care decisions, your food and drink preferences, and any religious or cultural beliefs.
An Advanced Statement is not legally binding, but it should be considered when making a decision in your best interests.
Send us a message
FAQs
Not unless they have been appointed as your attorney under a Lasting Power of Attorney (LPA) or as your deputy by the Court of Protection. It is a common misconception that spouses can make these decisions or manage bank accounts, but without an LPA in place, this is not the case.
No, a Will only comes into effect upon death. During your lifetime only your attorney (or deputy) can help with decision making if you have lost mental capacity.
This will depend on your circumstances. It’s possible that your LPA covers your needs without the requirement for an Advanced Decision.
A Health and Welfare LPA and an Advanced Decision overlap on some decisions, so it’s important that they don’t conflict with each other. This would cause confusion and may cause one to cancel out the other. If you intend to have both documents in place, it’s recommended that they are drafted at the same time so that they can complement each other and achieve your wishes.
They cover different perspectives on your future care – an Advanced Decision is a negative declaration to refuse treatment whereas an Advanced Statement is a positive declaration to request treatment, state your wishes and preferences.
An Advanced Decision is legally binding. An Advanced Statement is not but must still be taken into account when planning your care.
Jeremy Allen
Partner & Head of Trusts and Court of Protection
Jeremy Allen is a Wills, Probate and Trusts specialist at Rothera Bray Solicitors and is based at our Lace Market offices in the heart of Nottingham City Centre.
Emily Gordon
Senior Associate
Emily Gordon is a Senior Associate in Rothera Bray’s Mental Capacity and Court of Protection department and is based at our Nottingham office.
Lyndsey Hudson
Solicitor
Lyndsey is a Solicitor in Rothera Bray’s Mental Capacity and Court of Protection department. She is based at our Nottingham office.
Louise Mathison
Senior Paralegal
Louise Mathison is a Senior Paralegal in Rothera Bray’s Mental Capacity and Court of Protection department and is based at our Lace Market, Nottingham office.
Jessica Redden
Paralegal
Jessica Redden is a Paralegal in our Mental Capacity and Court of Protection department and is based at our Lace Market, Nottingham office.
stars
Posted 10 March 2026
We recently instructed Abbey Freeman at Rothera Bray to act on our behalf when buying our first house. As first time buyers, this was a completely whole new process to us and quite frankly a scary one too! However, throughout the whole process, from start to finish, Abbey and Luisa were brilliant. They are both extremely knowledgeable, approachable and quick to respond to any queries we had to ease our minds and point us in the right direction. We can’t thank both of you enough for your help and expertise throughout this process.
Carly-Jo Wakeling
stars
Posted 9 March 2026
David was great, always positive but realistic on what to expect. Would highly recommend anyone needing help or advice on divorce.
J.P.
stars
Posted 9 March 2026
Excellent service as always from Lucy and Karen, this will have been our 4th house purchase through Lucy and Rothera Bray, never let us down and always on time.
Jon Baird
stars
Posted 7 March 2026
We had the pleasure of using Rothera Bray to purchase our first home. Ellie Robinson was incredible from start to finish. Nothing was too much of an issue for Ellie and she kept us well informed during what is an extremely stressful time. Her communication was always prompt and she kept us updated every step of the way. Thank you Ellie
Olly Thompson
stars
Posted 6 March 2026
Had the pleasure of Ellie Robinson handling the purchase of our first home and could not be more grateful for the way she handled it all. Good communication and fast responses, updated us at every step of the way, due diligence during searches and enquiries and reporting to us thereafter. Very friendly yet professional and I would 100% recommend Ellie, she made the process as stress free as possible! Very huge thank you!!!
Chel S
stars
Posted 6 March 2026
Rothera Bray Solicitors Loughborough; On a number of occasions I have asked Nelissa Hicks (Partner) to be my legal representative, she delivers with professional conduct, is thorough in all matters and a great communicator. She gets things done in a timely manner and she is a very nice person. I highly recommend Nelissa & Rothera Bray Solicitors, Loughborough for their legal support & services.
Nigel Stewart
stars
Posted 6 March 2026
I’ve been using Rothera Bray for a number of years now. I really appreciated their professionalism following the death of my wife. Together we sorted out her estate and rearranged my powers of attorney to accommodate my altered circumstances. Now four years on from that I’ve taken the opportunity to update my Will. Once again Rothera Bray were a pleasure to deal with under the guidance of Nelissa Hicks who was able to make suggestions which helped enormously to assist my thought process. From my experience I would have no hesitation in recommending them and Nelissa Hicks for a professional, caring and successful outcome.
R.B Beck
stars
Posted 6 March 2026
Abbey was absolutely amazing throughout the whole process of helping us buy our house. From the very start she was incredibly responsive and supportive always just a call or message away whenever we needed her, and nothing was ever too much trouble. What really stood out was how quickly everything moved. We first got in contact on January 9th and we’re getting our keys on March 6th, which is incredibly fast for a house purchase. Abbey kept everything progressing smoothly and made what could have been a stressful process feel straightforward and well managed. We’re so grateful for all her hard work and dedication. I would highly recommend Abbey to anyone looking for a solicitor, she’s professional, efficient, and genuinely cares about her clients.
Paris Statham
stars
Posted 5 March 2026
Just bought our first house with the help of Abbey, always keeping us in the loop, outlining things and making sure we understand everything. Would definitely recommend if you want to put your mind at ease, I was surprised at how stress free everything was having heard friends and families cases. Thanks Abbey!
Alex Woolley
stars
Posted 5 March 2026
We had a great experience with Russell explaining our current wills in layman’s terms and making suggestions for enhancements.
Kate
stars
Posted 5 March 2026
Natalie was fair, unbiased and honest. Professional throughout. Competitive pricing, good comms and scheduling. Very happy with the process and result. Highly recommend.
Tom Spooner
stars
Posted 4 March 2026
I recently used Sara at Rothera Bray to act for me on the sale of a property. The nature of the sale was complicated but Sara acted with great patience, always keeping me updated with frequent communication and expertise. I can't thank her enough. Highly recommended to you.
Ian Clay