“A person lacks capacity in relation to a matter if, at the material time, he is unable to make a decision for himself in relation to that matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” Mental Capacity Act (MCA) 2005, Section 2(1).
The objective behind the MCA is to provide recognition of an individual's right to autonomy and to provide protection for vulnerable people. The Act is designed to protect and empower people who lack the mental capacity to make their own decisions. It applies to people aged 16 and over and covers day to day decisions (e.g., what to buy for your weekly shop) as well as life changing decisions (e.g., whether to have major surgery).
The Mental Capacity Act 2005 is supported by a Code of Practice, which outlines five key principles:
- Presumption of Capacity: with the introduction of a new functional test for determining capacity
- Individuals should be supported to make their own decisions as far as possible
- Decision Specific Capacity: we can all make unwise or eccentric decisions without being considered mentally incapacitated
- Best Interests: all decisions must be made with the best interests of the person making the decision
- Decisions should be the least interventionist/restrictive to the individual as possible.
People under a duty to have regard to the new Code of Practice include:
- Professionals (such as doctors, nurses and social workers or anyone getting paid for the work they do)
- Attorneys
- A Court of Protection deputy
- Family and non-professional carers should also be encouraged to familiarise themselves with the Code
A Lasting Power of Attorney (LPA) is a legal document which allows a person (the donor) to appoint someone or more than one person they trust (attorneys) to make decisions for them when they no longer have the mental capacity to make the decisions themselves. An LPA has to be made while the donor still has the mental capacity to give their consent to it.
No. Your family will have no access to your bank accounts and cannot sell your property unless they make an application to the Court of Protection for a deputyship order, which is a costly and lengthy process.
