Capacity & Decision‑Making After Brain Injury

Understanding how decision‑making is assessed, supported and protected after serious injury.
Decision‑making can be affected after a brain injury. Some people experience changes in memory, concentration, planning, judgement or insight. These changes can make certain decisions more difficult, especially those involving finances, legal matters, care arrangements or complex information.

This page explains what “capacity” means, how it is assessed, and the support available to help people make safe, informed decisions.

What Is Mental Capacity?

Mental capacity is the ability to:

understand information
retain it long enough to make a decision
weigh up the information
communicate a choice
Capacity is decision‑specific. A person may have capacity for some decisions but not others.
Capacity can also fluctuate, especially when fatigue, pain, medication or stress are involved.

Why Capacity Can Be Affected After Brain Injury

Brain injury can affect:
memory
attention
processing speed
planning and organisation
judgement
insight
emotional regulation

These changes can make complex decisions harder, particularly when information is detailed or unfamiliar.

How Capacity Is Assessed

Capacity assessments follow the Mental Capacity Act (2005) and involve:

1. Understanding the information
Can the person explain the decision in their own words?

2. Retaining the information
Can they hold the information long enough to make a choice?

3. Weighing up the information
Can they compare options and consider consequences?

4. Communicating a decision
Can they express a clear choice verbally, in writing or through other means?

Assessments may be carried out by:

doctors
psychologists
social workers
case managers
other trained professionals

Supporting Someone to Make Decisions

The Mental Capacity Act requires professionals to support decision‑making wherever possible. This may include:

simplifying information
breaking decisions into smaller steps
using visual aids
allowing extra time
reducing distractions
offering written summaries
involving familiar people
checking understanding gently and clearly

The aim is always to maximise independence.

Best Interests Decisions

If a person lacks capacity for a specific decision, professionals must act in their best interests.

This involves considering:

the person’s wishes and values
their past decisions
their cultural or religious beliefs
input from family and carers
the least restrictive option
Best‑interests decisions may relate to:
medical treatment
care arrangements
living environment
financial protection

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Red Flags That Suggest Someone May Be Struggling With Capacity

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• Difficulty understanding information, even when explained clearly

• Inability to retain key details long enough to make a decision

• Struggling to weigh up options or compare risks and benefits

• Inconsistent or contradictory decisions

• Choices that are clearly out of character or unsafe

• Being overly influenced by others when making decisions

• Poor insight into risks or consequences

• Impulsive, high‑risk or unsafe behaviour

• Difficulty communicating a clear decision or explaining the reasoning

• Sudden changes in behaviour, mood, fatigue, pain or confusion that affect decision‑making

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Deputyship and Power of Attorney

If long‑term support is needed, families may consider:

Lasting Power of Attorney (LPA)

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Appointed before capacity is lost.
Court of Protection Deputyship
Appointed after capacity is lost.
These roles help manage:
finances
property
care decisions
medical decisions (depending on the type of LPA)

The separate Deputyship & Power of Attorney page provides more detail.

The Role of Neuropsychology

Neuropsychologists assess:
cognitive function
memory
attention
executive skills
insight
emotional factors
Their assessments often inform capacity decisions and rehabilitation plans.

Rehabilitation and Capacity
Rehabilitation can improve decision‑making by supporting:
memory strategies
planning tools
fatigue management
emotional regulation
confidence
structured routines

Capacity is not fixed. It can improve with recovery, therapy and support.

Further Support

If you are reading this page and have questions, you are welcome to call or message me on 07584131931/ Emil:rose@seriousinnjurylawyer.online For more information on rehabilitation and recovery, see:

Neuropsychology After Brain Injury
Cognitive Rehabilitation After a Serious Injury
Executive Function Problems After a Brain Injury
Psychological Rehabilitation After a Serious Injury