The Mental Capacity Act 2005 came into force on 1 October 2007.

The Court of Protection court itself acquired new status.

The Mental Capacity Act gave the Court of Protection jurisdiction to make orders about personal welfare, as well as property and finance, for those who lacked the capacity to make these decisions for themselves.

It brought with it new terminology:

• Receivers under the old regime became deputies
• Enduring Powers of Attorney were replaced with Lasting Powers of Attorney

Section 1 of the Mental Capacity Act ("the Act") sets out five principles that have to be followed by all those dealing with incapacitated adults these are:

1. a person must be assumed to have capacity unless it is established that they lack capacity
2. a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success
3. a person is not to be treated as unable to make a decision merely because he makes an unwise decision
4. an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests
5. before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action

The Deputy must always have regard to the five principles set out in section 1 of the Act and must always be considering those when making decisions.

The Mental Capacity Act Code

The Mental Capacity Act also has a code or practice for Deputies and attorneys. The Code has statutory force and failure to follow it can be used as evidence against that person. The aim of the Code is to help those involved with incapacitated adults to better carry out their role. They must always be assessing whether an action they are about to take or a decision they are to make is in the client’s best interest.

The 2005 Act makes it clear that capacity is to be considered on a decision by decision basis. Before the introduction of the Mental Capacity Act, the assessment of capacity under the Mental Health Act 1983 was an all or nothing test. The Act recognises that each case is individual and may have fluctuating capacity. We constantly consider the mental capacity of each person we act for in relation to the decision being made, and if necessary instruct a medical practitioner to carry out a formal assessment.

The Mental Capacity Act, and the more recent Deprivation of Liberty Safeguards are still very new law and this area of practice is developing rapidly with new cases being reported which effect how the law is applied. We work at the cutting edge of these developments.

Court of Protection solicitors

To arrange a discussion with a Court of Protection solicitor about click here or call us on 0800 840 4929. We are available to take your call twenty four hours a day, seven days a week.