Mental Incapacity

Many persons are affected by an illness, disability or physical condition which affects their capacity to make decisions for themselves or their ability to communicate such decisions. Common examples of such illnesses, disabilities or conditions include mental illness, strokes, Alzheimer's disease, intellectual disability and brain injury.

The Guardianship and Administration Act 1993 was introduced to protect a person with a mental incapacity as well as her or his property from abuse, exploitation and neglect (including self neglect). The Mental Health Act 2009 deals with issues concerning mental illness and compulsory treatment.


Mental incapacity as defined in the Guardianship and Administration Act 1993 means the inability of a person to look after her or his own health, safety or welfare or to manage her or his own affairs, as a result of:

  • any damage to or any illness, disorder, imperfect or delayed development, impairment or deterioration, of the brain or mind (i.e. brain damage or neurological disease), or
  • any physical illness or condition that renders the person unable to communicate her or his intentions or wishes in any manner whatsoever (e.g. multiple physical disabilities like hearing, speech and sight impairments and stroke victims)

Section 59 of the Guardianship and Administration Act 1993 allows specified relatives to give medical consent in situations where a person has a mental incapacity. The Act also allows a person, whilst competent, to legally appoint someone to make personal decisions (such as accommodation) and health care and treatment (including end of life — this does not extend to euthanasia) decisions on her or his behalf using an enduring power of guardianship. Enduring power of guardianship is different from an enduring power of attorney (made under the Powers of Attorney and Agency Act 1984 ) which covers decisions about financial and legal matters only. For information on enduring powers of guardianship, other powers of attorney and anticipatory direction, see ADVANCE DIRECTIVES.

Mental Incapacity  :  Last Revised: Mon Aug 6th 2012
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