Mental Capacity Act 2005

The Mental Capacity Act 2005 provides a statutory framework to empower and protect people 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 act was fully implemented in October 2007 and applies in England and Wales.

The main purpose of the act is to clarify and reform the common law provisions that had governed the ways in which society dealt with people lacking decision-making capacity. It is 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 healthcare 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.

According to the law, a person is defined as being unable to make decisions for themselves 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, including talking, using sign language, or even through 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 that all decision makers must work though in deciding what is in the best interests of the incapacitated person.

5  If someone lacks capacity, before making a decision on their behalf, all alternatives must be considered and the option chosen should be the least restrictive of their basic rights and freedoms.

When considering a person's views and wishes it is important that they are given weight, and are carried out, unless the effects would be detrimental to that person.

Planning for the future

Enduring power of attorney and lasting powers of attorney

The Mental Capacity Act 2005 created a new type of power of attorney known as a lasting powers of attorney (LPA). LPAs replaced enduring power of attorney (EPA) in 2007, when the Mental Capacity Act came into force. Any EPA remains valid whether or not it has been registered at the Court of Protection, provided that both the donor of the power and the attorney/s signed the document prior to 1 October 2007.

There are two types of LPA:

• 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 position under EPAs, which could only relate to property and finances. The two forms of LPA give 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 is now possible to appoint relatives to make welfare decisions in a personal welfare LPA, while appointing a professional adviser for decisions relating to property and affairs.

A personal welfare LPA only takes effect when the donor lacks capacity to make decisions. However, 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, at some time in the future.

The system of LPAs gives more protection and options than the previous system of enduring power of attorney. EPAs can be used as soon as all parties have signed up to them, 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 Office of the Public Guardian.

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, as long as they have capacity.
If you have an EPA or LPA, under the new law the attorneys will have to ensure they make decisions in your best interests.

New and shorter LPA forms have been designed and came into effect on 1 October 2009. The 2007 LPA version can be used until 31 March 2011. If the old version of LPA is used, the donor must register the document before 31 March 2011. The Attorneys can sign after that date.

For more information, see Factsheet 472, Enduring power of attorney and lasting powers of attorney.

Advance decisions

An advance decision allows someone to specify particular types of treatment that they do not want should they lack the mental capacity to decide this for themselves in the future. This may include refusal of life-sustaining treatment. Advance decisions are legally binding and, as long as they meet certain conditions, they must be followed by health professionals.

Before the implementation of the Mental Capacity Act, people could already make advance decisions (more commonly known as advance directives or 'living wills'). However, the act has introduced a number of conditions that must be followed when making an advance decision in order for it to be valid. If someone has an advance directive from before 1 October 2007, they should check that it meets these more recent conditions if they want it to remain legally binding − particularly if it relates to refusing life-sustaining treatment.

For an advance decision to be legally binding, it must be made in writing, signed by the person making it and witnessed. The person making the decision must be aged 18 years or over and must have the mental capacity to make such a decision.

The person 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 it 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 appointed a health and welfare attorney, an advance decision will take priority unless they have specifically given authority to their attorney to make decisions regarding life-sustaining treatment on their behalf.

Nevertheless, if the person who has made the Personal Welfare LPA on a given date, subsequently makes an advance decision that contains the words 'even if life is at risk', and the advance decision and the statement 'even if life is at risk' are both in writing and signed and the signature is properly witnessed, such an advance decision will be binding on the Personal Welfare Attorney.

If someone has not planned ahead in this way, 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.

For more information, see Factsheet 463, Advance decision (which provides both explanatory information and a form).

Deputies

If you have not made arrangements (such as setting up lasting powers of attorney or an advance decision) and something needs to be done about property or financial affairs, such as redeeming an insurance policy or selling a house, 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.

Safety measures

The act establishes some significant safety measures:

• Court of Protection − a court that 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 is supported by the Office of the Public Guardian (OPG).
• Independent mental capacity advocates (IMCAs) − individuals who 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 long term accommodation where it is provided by the NHS or a local authority.
• Clear guidelines for research − designed for any research involving people who lack capacity. The research must be approved by an appropriate body. This body must also ensure that the research is safe and relates to the person's condition, and must also ensure that the research would be less effective if it involved people who had mental capacity.
• Criminal offence of ill treatment or wilful neglect of a person who lacks capacity − a new criminal offence. A person found guilty of this offence may be liable for up to five years imprisonment.

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.

The following people are under a duty to 'have regard' to the code:

• those working in a professional capacity
• people receiving payment for work dealing with people who lack capacity
• anyone appointed an attorney under an LPA
• a deputy appointed by the Court of Protection.

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

For details of Alzheimer's Society services in your area, visit alzheimers.org.uk/localinfo
For information about a wide range of dementia-related topics, visit alzheimers.org.uk/factsheets

Useful organisation

Office of the Public Guardian (OPG)

PO Box 15118
Birmingham B16 6GX
T 0300 456 0300 (Customer Services)
E customerservices@publicguardian.gsi.gov.uk
W www.publicguardian.gov.uk

The OPG supports and promotes decision making for those who lack capacity or would like to plan for their future, within the framework of the Mental Capacity Act 2005. The Court of Protection is at the same address.

The Office of the Public Guardian provides a range of useful information online, including the Mental Capacity Act Code of Practice, available at: www.publicguardian.gov.uk/mca/code-of-practice.htm

It has also produced the following booklets, which are available as free downloads at: www.publicguardian.gov.uk/forms/additional-publicationsa-newsletters.htm or, for printed copies, by email reorder@inprintlitho.com or by phone on 023 8087 8038.

• Making decisions... about your health, welfare or finance. Who decides when you can't (for people who may lack capacity, or may do so in future)
• Making decisions - Helping people who have difficulty deciding for themselves (for unpaid carers)
• Making decisions - A guide for people who work in health and social care
• Making decisions - A guide for advice workers

Factsheet 460

Last updated: March 2010
Last reviewed: March 2010

Reviewed by Luke Warren, Information Officer (Legal and Welfare), Alzheimer's Society and Henry Frydenson, Solicitor Advocate, Mishcon de Reya