Alzheimer's Society

The Mental Capacity Act 2005 provides a statutory framework to empower and protect people who are aged 16 and over who lack or may lack capacity to make certain decisions for themselves because of illness, a learning disability, or mental health problems.

The main purpose of the Act is to clarify and reform the current common law provisions which govern the ways in which people can and should deal with people who lack decisionmaking capacity, supplemented by new statutory schemes for advanced decision making and court-based resolution of disputes or difficulties. The Act covers decisions relating to an individual's property and financial affairs together with decisions regarding health care treatment and more everyday decisions such as personal care.

What is mental capacity?

If someone is unable to make a decision for themselves at the material time because of an impairment of the mind, then that person can be said to lack the mental capacity to make that decision.

The legal definition for someone who cannot make decisions for themselves is if they are not able to undertake at least one of the following:

• understand information given to them
• retain that information long enough to be able to make a decision
• weigh up the information available to make a decision
• communicate their decision - by any possible means, such as talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.

The five main principles of the Act

The Act encompasses five main principles:

1. A presumption of capacity - every adult has the right to make their own decisions and must be assumed to have capacity to do so unless it is proved otherwise. That capacity is presumed to be ongoing until there is evidence to the contrary.
2. The right for individuals to be supported to make their own decisions - all reasonable help and support should be provided to make their own decisions and to communicate those decisions where necessary, before it can be assumed that they have lost capacity.
3. It should not be assumed that someone lacks capacity simply because their decisions might seem unwise or eccentric.
4. If someone lacks capacity, anything done on their behalf must be done in their best interests. The Act provides a checklist of factors which all decision makers must work though in deciding what is in the best interests of the incapacitated person.
5. If someone lacks capacity, anything done or any decision made on their behalf should be the least restrictive of their basic rights and freedoms.

Planning for the future

The Mental Capacity Act creates a new type of power of attorney to be known as a Lasting Power of Attorney (LPA). The Act repeals the Enduring Powers of Attorney Act and from 1 October 2007 it will no longer be possible to execute an Enduring Power of Attorney (EPA), although existing EPAs created prior to this date will continue to operate.

There are two types of LPA: property and affairs LPAs and personal welfare LPAs. Each has its own separate form.

A property and affairs LPA gives the attorney(s) the power to make decisions about financial and property matters, such as selling a house or managing a bank account.

A personal welfare LPA gives the attorney(s) the power to make decisions about health and personal welfare, such as day-to-day care, medical treatment, or where the person should live.

This differs from the current position under EPAs which could only relate to property and finances. The LPA gives the donor a choice of conferring broad or limited powers to make decisions on their behalf, and a choice of who to appoint. For example, it will now be possible to appoint relatives to make welfare decisions, but a professional adviser for decisions relating to their property and affairs.

A personal welfare LPA only ever takes effect when the donor lacks capacity to make decisions. A property and affairs LPA can take effect as soon as it is registered, even while the donor still has capacity, unless the donor specifies otherwise. The donor can, of course, specify that the attorney may only start managing their financial affairs after they lose capacity, some time in the future.

The system of LPAs gives more protection and options than the previous system of Enduring Power of Attorney (EPA).

Even after 1 October when LPAs come into force, existing EPAs can still be used as they were before. EPAs can be used as soon as they have been signed by all parties, even before someone loses their mental capacity (assuming the EPA has not been drafted to the contrary). Only when the person granting the EPA loses their mental capacity does the EPA have to be registered with the public guardianship office.

In summary, if you have already prepared an EPA it will still continue to be valid after 1 October 2007. However, no new EPAs can be drafted after this date as only LPAs can be used.

Any existing EPA only applies to finance and property matters, so even if someone already has one, they can also make an additional LPA for personal welfare decisions under the Act.

An Advance Decision allows someone to specify particular types of treatment they do not want should they lack the mental capacity to decide this for themselves in the future. Advance decisions are legally binding and as long as they meet certain conditions, must be followed by health professionals.

Before the implementation of the Act, people could already make advance decisions (more commonly known as advance directives or 'living wills') which were also legally binding. The Act introduces a number of conditions that must be followed when making an Advance Decision in order for it to be valid. If someone has an existing Advance Directive, they should check that it meets these conditions if they want it to remain legally binding.

For an Advance Decision to be legally binding, the person must be aged 18 years or over and have the mental capacity to make such a decision. They should clarify which treatments they are refusing, although it is not essential to use detailed medical terms, and they should specify to which circumstances the refusal refers especially if the refusal relates to life sustaining treatment. A medical professional will need this information to decide whether an Advance Decision is valid and applicable to a particular treatment. If someone is refusing treatment because of a particular religious or philosophical point of view, it is helpful to explain this in the advance decision.

An Advance Decision cannot be made to request a particular treatment - it can only specify what types of treatments would be refused.

If someone has not planned for the future

If someone has not planned ahead in this way, and a decision about their money, health or lifestyle is needed and they lack the capacity to make the decision, then someone else has to decide what to do.

• The Act states that actions regarding care and treatment for a person who lacks capacity can be carried out by someone else, as long as they are in that person's best interests and follow the principles of the Act. This could cover a wide range of actions carried out by carers or professionals such as help with washing, dressing, eating or mobility. However, a formal court procedure needs to be carried out to appoint someone who can make these decisions or for such decisions to be approved.
• If something needs to be done about property or financial affairs such as redeeming an insurance policy or selling a house, then someone can apply to the Court of Protection to deal with the situation in the best interests of the person lacking capacity. The court will have authority to make orders about any healthcare or financial matters.
• For complex or ongoing financial decisions or where a series of steps may be needed over a long period, the court can appoint a deputy to make decisions. Again, the deputy must always act in the best interests of the person who lacks capacity.

The Act establishes some significant safety measures:

• Court of protection: a court which can make declarations about whether someone lacks capacity, and can make orders or appoint deputies who can act on behalf of someone who lacks capacity.
• Public guardian: a public official whose duties include registering Lasting Power of Attorneys (LPAs) and supervising deputies appointed by the court of protection. The Public Guardian will be supported by a new office called the Office of the Public Guardian (OPG).
• Independent Mental Capacity Advocates (IMCA) provide support for people who lack capacity if they have no one to speak for them. They only become involved in decisions about serious medical treatment or the person's accommodation where it is provided by the NHS or a local authority.
• Clear guidelines for research are detailed for research involving people who lack capacity. The research must be approved by an appropriate body, which must also ensure that the research is safe and relates to the person's condition. They must also ensure that the research would be less effective if they use people who have mental capacity.
• Criminal offence of ill treatment or willful neglect of a person who lacks capacity has been introduced. A person found guilty of this offence may be liable to imprisonment for up to five years.

The code of practice for the Mental Capacity Act

The code of practice for the Mental Capacity Act gives guidance on how the Act should work on a day-to-day basis. It provides case studies and explains in detail the key features of the new law.

People who are under a duty to have regard to the code are people working in a professional capacity, people receiving payment for work dealing with people who lack capacity, anyone appointed an attorney under an LPA and a deputy appointed by the Court of Protection.

Family, friends and other unpaid carers do not have a duty to 'have regard' to the code but are likely to find the guidance useful.

Helpful organisations

Ministry of Justice

Guidance on the Mental Capacity Act (2005) can be found online at http://www.justice.gov.uk/guidance/mentalcapacity.htm.

The Mental Capacity Act code of practice can be downloaded from http://www.justice.gov.uk/guidance/mca-code-ofpractice.htm.

The following booklets are also available:

Making Decisions ... about your health, welfare or finance. Who decides when you can't
For people who may be unable to make some decisions for themselves or who wish to plan ahead for the future.

Making Decisions. Helping people who have difficulty deciding for themselves
For unpaid carers of people lacking capacity.

Making Decisions. A guide for people who work in health and social care
For health and social care workers.

Making Decisions. A guide for advice workers
For advice workers.

You can download copies of these booklets from the website http://www.justice.gov.uk/guidance/mca-infobooklets.htm.

To request printed copies you can telephone 023 808 780 38, fax 023 8052 8324 or email reorder@inprintlitho.com.

Office of the Public Guardian 

Archway Tower
2 Junction Road
London N19 5SZ

Customer services phone: 0845 330 2900
Email: mailto:customerservices@publicguardian.gsi.gov.uk
Website: http://www.guardianship.gov.uk/

Customer services provide free booklets on enduring power of attorney and receivership. Their phoneline is available from 9am to 5pm on weekdays. The court of protection is at the same address.

Other useful information

Advance decision: explanatory information and form
Information sheet 463, Alzheimer's Society May 2007

Enduring power of attorney, lasting power of attorney and receivership
Information sheet 472, Alzheimer's Society January 2006

Information sheet 460

Last updated: August 2007
Last reviewed: August 2007