Page updated: 16 Sep 2010
Applying the Mental Capacity Act
Most of the Mental Capacity Act 2005 came into force on 1 October 2007 and it has a number of effects on how people can decide on their affairs in case they lose mental capacity.
See the Public Guardian website for more.
Lasting powers of attorney and court-appointed deputies
The person you care for can grant a lasting power of attorney (LPA) to another person or people to enable them to make decisions over their personal welfare and their property and financial affairs. There will be a separate legal document in respect of each of these, appointing one or more attorneys.
An enduring power of attorney (EPA) under the previous law was restricted to making decisions over just property and financial affairs. An EPA made before 1 October 2007 remains valid.
Powers of attorney can be made at any time when the person making it has the mental capacity to do so. Both an EPA and LPA must be registered. An LPA can be registered at any time but a personal welfare LPA will only be effective once the person has lost capacity to make their own decisions. An EPA can only be registered when the person who made it is losing or has lost the capacity to make their own decisions.
In addition, the Court of Protection will be able to appoint 'deputies' who can also take decisions on health and welfare, as well as in financial matters. They will come into action when the court needs to delegate an ongoing series of decisions rather than one decision. Deputies will not be able to refuse consent to life-sustaining treatment.
The Court of Protection
The Court of Protection oversees the operation of the Mental Capacity Act and deals with all issues, including financial and serious healthcare matters, concerning people who lack the mental capacity to make their own decisions. It also tries to resolve all disputes when the person’s carer, healthcare worker or social worker disagree about what's in the person’s best interests, or when the views of the attorneys in relation to property and welfare conflict.
The public guardian
The role of the office of the public guardian is to protect anyone who lacks mental capacity to make decisions for themselves. It registers LPA and EPA and supervises court-appointed deputies. It supervises court-appointed deputies and provides evidence to the Court of Protection and information and guidance to the public. The public guardian works with a range of agencies, such as the police and social services, to investigate concerns.
The independent mental capacity advocate service
The independent mental capacity advocate helps people:
- who do not have mental capacity,
- who have not given powers of attorney to anyone,
- who do not have a court-appointed deputy, and
- who have no friends or family to speak on their behalf.
They will help the person who lacks capacity to make decisions about serious medical treatment, such as heart surgery or electro-convulsive therapy (ECT), and long-term accommodation in a hospital or care home.
Find out more about advance decisions by clicking here.