Mental Capacity Act 2005 – what you need to know

Home

Mental Capacity Act 2005

The Act is a new piece of legislation which will amend the rules on powers of Attorney. It will take effect from April 2007.

Introduction

The current legislation, the Power of Attorney Act 1985 is about to be changed in both practise and style. The so called EPA forms that are now used to make and also register a PoA will be called LPAs, or lasting Power of Attorney forms.

The Act governs decision-making on behalf of adults who lack mental capacity, both where they lose capacity at some point in their lives, and where the incapacitating condition has been present since birth. It covers all decisions, including personal welfare and financial matters, and covers decision-making on their behalf by attorneys, or court-appointed "deputies". It also clarifies the position if formal process has not been adopted.

The Act is useful because the current law on decision-making for adults who lack capacity has evolved bit by bit. Existing attorneys or receivers only make decisions on financial matters whereas new Attorneys under an LPA can make decisions about the health and safety of their donor, if prescribed. The Act provides clarity about who can make decisions and how to do it. It protects vulnerable people, carers and professionals.

What is a Lasting Power of Attorney (LPA)?
An (LPA) is a new statutory form of power of attorney created by the Act. Anyone who has capacity to do so may choose a person (an "attorney") to take decisions on their behalf if they subsequently lose capacity. The LPA will replace the Enduring Power of Attorney (EPA) currently provided for by the Enduring Powers of Attorney Act 1985. Unlike an EPA, an LPA can extend to personal welfare matters as well as property and affairs.

Main differences in the legislation:

Functionality tests will for the first time, define of ‘capacity’. Anyone involved with elderly or vulnerable adults will need to become familiar with the Act, the statutory definition and what will be known as the 'functionality' test. You can find the act;
The aim is to determine whether a person has capacity to take a particular decision at a particular time, and the test will be specific to each individual case. Furthermore, just because someone lacks the capacity to make one decision does not necessarily mean they are unable to make another type of decision;
Registration - an EPA does not need to be currently registered with the Court of Protection unless or until the individual creating it loses mental capacity. LPAs will need to be registered with the Court from the point at which they are to be used, regardless of the individual's capacity.

The new regime will mean that an LPA cannot be used before registration. While this may prevent unauthorised use, it will also reduce the flexibility offered by EPAs, which allowed a donor to delegate some tasks while retaining responsibility for others.

Duress or undue influence - When creating a new LPA, a third party will need to certify that the person creating the power had the necessary capacity to sign, and that they did not do so under any duress or undue influence Health and welfare decisions.

Currently, EPAs are only effective for financial matters. Under the Mental Capacity Act 2005, individuals will be able to appoint attorneys to make health and welfare decisions for them (to include acts in connection with care and treatment and advance decisions to refuse treatment).

These new powers will allow an individual to confirm their right to refuse treatment. Sanctions will be imposed if these wishes are ignored and, in certain circumstances, the person responsible for ignoring these wishes could be committing a criminal offence.

What happens to my current EPA?

Once the Act comes into force, the old style EPA will remain effective even though it will not be possible to create new EPAs.

Independent mental capacity advocates (IMCA)?
When a person who lacks mental capacity has to make a serious decision about treatment or where they live, an independent mental capacity advocate (IMCA) is appointed to support and represent them. The IMCA voices the person's wishes, feelings, beliefs and values and they make the decision maker aware of all relevant information. They can also challenge the decision maker.

An IMCA will be provided when someone with no friends or family to support them, is faced with a decision about a serious medical treatment or their accommodation. The Government has made a clear commitment to consult with external partners on extending the service to other groups and situations.

What is a living will?
A living will is not a legal term. It is referred to in the Mental Capacity Act as an advance decision to refuse treatment. It means that you can make a decision now, about treatment you would not want in future when you have lost capacity. An advance decision must be in writing, signed and witnessed, and if it applies to life-sustaining treatment there must be a statement that the decision stands even if life is at risk.

If by chance you find some error of law or fact in any Net Lawman information page, do please tell us. We should also welcome your suggestions for new subjects for information pages. These notes: