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Article On Mental Capacity Act - April 2007.


An article from an expert mental health lawyer I speak to:



The ability to plan ahead for our own incapacity is substantially enhanced this October. The Mental Capacity Act introduces important new rights for very vulnerable people. At present, if an adult does not have sufficient capacity to make decisions for themselves, who do you think has the right in law to make their decisions for them? Many assume, quite wrongly, that their ‘next of kin’ can decide. This is one of our great legal myths. Next if kin have no legal right to make decisions. Our current law is in a mess. As a result, some very vulnerable people are very easy to exploit and abuse. At the same time, involved and loving families can be excluded from key decisions. However, the law will change when the Mental Capacity Act 2005 comes into force on the 1st October. It will affect the lives of millions of people.

Many vulnerable people are able to make some of their own decisions - even those with severe disabilities and high support needs. This is because they have capacity to do so. The Act will reinforce that right. However some activities or decisions may demand more capacity than others. An older person with dementia may be quite capable of collecting and spending their weekly pension, but may be unable to deal with more complex financial matters, like investments or selling a property.

What does the Mental Capacity Act do?

Planning Ahead

The Act gives us the opportunity and responsibility to make plans for our own incapacity. We should plan ahead. Many people make wills to plan for death. Surely it is more important to decide who should be able to make decisions for us if we can no longer do that for ourselves. Currently, through an Enduring Power of Attorney (EPA) we can decide who makes financial decisions for us. (It will not be possible to make an EPA after 1st October 2007).Their replacement, the Lasting Power of Attorney [LPA}) goes a lot further than that. It will allow us not only to chose who we would want to make our financial decisions, but the new LPA can also cover health and welfare decisions as well. This means e.g. that we chose who has the power to decide where we live.

What does lacking capacity mean?

Having capacity means that we are able to take responsibility for our own decisions. If, despite advice we make an unwise decision e.g. in love or with money, we have the right to do that. We then however may have to live with the consequences of that decision for a very long time! We can even decide to refuse medical treatment where the consequence of that refusal might be our own death. On the other hand, some people, for a variety of reasons, might not have the wherewithal to take that responsibility. They may not be able to understand or may have difficulties which prevent them properly processing the information. They may be able to make some decisions for themselves but not others. There is a real danger that we sometimes wrongly assume that someone lacks capacity merely because of a label like Alzheimer’s or learning disability. A person with Downs Syndrome may have sufficient capacity to decide who the marry or where they live,

How will decisions be made?

Many people wrongly believe wrongly that a nest of kin has the right to make decisions on behalf of incapacitated adults. The Mental Capacity Act will give lawful general authority to make decisions to someone who is responsible for that particular decision as long as proper procedures are followed. If the next of kin is not the ‘decision maker’ then they have no legal right to make the decision.

The incapacitated person must lack capacity to make that particular decision at that time and it must be in their best interests. The decision maker, in order to have legal protection, must following the Code of Practice and the statutory principles.

If an elderly person lacks capacity and is being cared for at home by their younger daughter then it would be she and not the eldest son (next of kin) who would have the ability to make day to day decisions for them. If someone is unhappy about this or there is an argument as to what is in a persons’ best interest there will be a mechanism for resolving those disputes through the revamped Court of

What is to be done?

For all organisations that care for or are responsible for people who lack capacity they will all need a good grasp of the new Act. This includes GP’s, solicitors, bank managers, financial advisers, care homes, charities, social workers, family members, the list is endless.

Kind Regards,

Stephen (Johnson).
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