Mental Capacity and Power of Attorney

What happens if someone loses the capacity to make important decisions due to some form of impairment?

The Mental Capacity Act 2005

The Mental Capacity Act came into force in 2005 in order to replace the existing legislation found in the Power of Attorney Act 1985. The reason for this statutory change is that the law which existed prior to the Mental Capacity Act had evolved through a continuing process. Therefore it was desirable to set in stone what the process would be in this situation.

Mental Capacity

What is meant by Mental Capacity?

Mental capacity is the ability of an individual to make decisions which may affect themselves. This decision making can be lost at some point during their lives or the incapacitating condition may have been present since birth. The basic notion is that it is where an adult is unable to fully make certain decisions about their life due to a certain mental condition.

What is the position under the Act?

The Mental Capacity Act covers the situation whereby an adult lacks the requisite mental capacity to make decisions in their life regarding their personal welfare and financial matters. The act covers decision making on their behalf by so called power of attorney’s or even by court appointed deputies.

The two most important changes brought about by the Mental Capacity Act are the following:

  1. Creation of the Lasting Power of Attorney

  2. Setting in stone the process whereby there is no power of attorney

Lasting Power of Attorney

The Mental Capacity Act creates a new statutory form of power of attorney. As was the case under the existing legislation anyone who has capacity may choose to appoint a power of attorney in order to take their decisions on their behalf is they were to subsequently lose their capacity to make the decisions themselves.

So what is the change brought about by the Mental Capacity Act?

The Lasting Power of Attorney replaces the previous form under the Power of Attorney Act – the Enduring Power of Attorney. One of the key differences between the two is that a Lasting Power of Attorney extends to decisions in relation to personal welfare as well as decisions relating to property and affairs.

Unlock this article now!


For more information on:

  • The Functionality Test
  • The Requirement for Registration
  • Situation whereby there is no power of attorney
  • Independent Mental Capacity Advocate