Attend Factsheet 1h:
What does the Mental Capacity Act do?
It sets out important legal principles which concern people who lack mental capacity. It helps them make decisions for themselves and sets out rules for those make decisions on their behalf.
The New Court of Protection
The court of protection will still have the same name but it will be a new court with these important changes: It will be a single specialised court staged by many trained judges, it will be based in several cities across the country so it is more accessible, it will have more power to make decisions about where someone can decide about property, financial affairs, welfare and medical treatment, It will also be able to decide whether someone lacks the capacity to make a decision, If a decision cannot be made they can make single decision about the matter or appoint a deputy to make the decision on the person’s behalf, Finally it will be able to make decisions on lasting powers of attorney as well as old enduring powers of attorney.
Key Principles
The first part of the Act sets out key principles that must be considered by the court and anyone else making a decision for someone who is unable to make their own decisions. The key principles are: a person has a mental capacity unless proved otherwise; only after all sensible steps have been taken to help a person come to their own decision without success may they be treated as incapable, just because someone makes an ‘unwise decision’ does not mean they ‘lack mental capacity’, and finally all acts done on someone’s behalf should have their ‘best interest’.
Defining whether a Person Lacks Mental Capacity
The act’s definition of when a person lacks mental capacity is, “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 the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” They also have the following to consider, it does not matter whether the impairment is permanent or temporary or what the person’s age is. A lack of ability to communicate does not necessarily mean there is a lack of mental capacity.
How to Assess Mental Capacity
The way to measure whether a person has the mental capacity to make a decision rests on two facts, the specific decision being made and the person’s specific circumstances. There are different magnitudes of decisions that have to be made, like managing a small personal bank account versus a larger portfolio of investments. The best way to test the cases is to see if the person is able to: understand the information relevant to the situation, retain that information, weigh the pros and cons of that information, and communicate their decision.
The Duty to Act in the ‘Best Interests’
The act sets out a checklist to see what is in a person’s ‘best interest’: consider the person’s past and present wishes and feelings, their beliefs and values. The views of others should be consulted when, it is someone named by the person as someone to consult, someone caring for that person and cares about their welfare, anyone appointed under the power of attorney, and any deputy appointed by the court.
Lasting Powers of Attorney
The new lasting powers of attorney will work differently from the old system in that: they will enable the person to appoint someone they know and trust to make decisions on their behalf, there will be two different types of lasting power of attorney one for a person’s property and financial affairs the other for a person’s personal welfare including decisions on health and welfare, they must be signed while the person has the mental capacity to fully understand what they are signing, they must be registered with the court of protection before they can be used, the person can specify in writing the nature and extent of the decision making power they are giving to their attorney, the form will contain a ‘certificate of capacity’ that will need to be completed by a professional person to confirm the person understands what they are signing.
The Court of Protection and Making Decisions
Where a decision is needed to be made for a person the court of protection will have the power to either, make a single decision about the matter or appoint a deputy to make decisions on that person’s behalf. The Act states that a single decision by the court is better than the appointment of a Deputy and the powers given to a Deputy should be as limited as is reasonable in the circumstances. The court can appoint two different types of deputies, one for a person’s property and financial affairs and one for a person’s welfare, medical treatment and care.
Advance Decisions to Refuse Treatment
The act also sets out guidelines for making decisions about what medical treatment you may want to refuse in the future. The Act allows someone to make ‘Advance Decisions to Refuse Treatment’, also known as a living will.
Independent Mental Capacity Advocates
There is going to be a national system of ‘Independent Mental Capacity Advocate’ who are trained and appointed in hospitals and communities to represent the rights of people who have no one else to speak up for them.
Contact
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