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.

Furthermore there are two key differences established by the Lasting Power of Attorney. They are as follows:

  1. The functionality test

  2. The requirement for registration

The Functionality Test

The functionality test is a test which has been brought in by the Mental Capacity Act in order to establish whether an individual does in fact have capacity to make a particular decision at a particular time.

The test will be specific to each individual case and if a person is held not to have sufficient capacity for one particular decision this does not necessarily mean that they will not have the required capacity for a different decision.

The Requirement for Registration

A lasting power of attorney will be required to be registered with the Court of Protection at the point of which it is to be used. Therefore a lasting power of attorney cannot be used before registration.

When a lasting power of attorney is created a third party will need to witness the creation in order to establish whether the person who created it did in fact have the requisite capacity to create the power of attorney and that they were not under any undue influence or duress.

Situation whereby there is no power of attorney

Independent Mental Capacity Advocate

In the situation where an individual who lacks the requisite mental capacity has to make a serious decision then an appointed independent mental capacity advocate will be required to support them in the decision making process.

An independent mental capacity advocate will be appointed when the individual has no friends or family to support them in making an important decision regarding serious health issues such as medical treatment or serious issues in relation to their accommodation.

The role of the independent mental capacity advocate will be to put forward that person’s wishes, feelings, values and beliefs making the individual that makes the final decision fully aware of all the issues. In certain instances an independent mental capacity advocate can challenge the decision maker if they believe that the decision does not adequate represent the individual.