Lacking mental capacity can mean different things to different people, but it is usually taken to mean people who have an injury, disorder or condition that affects the way their mind works. The Act states that “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”.
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The Mental Capacity Act 2005
The Mental Capacity Act 2005 came into effect on 1 October 2007. The Act introduced important changes which affect decision-making for both the healthy and the incapacitated.
The main aims behind the legislation are to provide recognition of the individual's right to autonomy and to provide further protection for the vulnerable. It is also designed to protect and empower people who make lack the mental capacity to make their own decisions about their care and treatment. It applies to people aged 16 and over. It covers day to day decisions such as what to wear or what to buy for your weekly shop or serious life changing decisions like whether to move into a care home or have major surgery.
Code of Practice
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 Deputy.
- Family and unprofessional 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 to appoint someone they trust (the ‘Attorney’) to make decisions for them when they no longer have the mental capacity to make them themselves. An LPA has to be made while the person concerned (the ‘Donor’) still has the mental capacity to give their consent to handing over their affairs.
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.