If you care for someone who lacks the mental capacity to make a particular decision, the Mental Capacity Act 2005 provides a legal framework and strict guidelines within which anyone appointed as an Attorney or a Deputy must act.
Capacity may be deemed to be lacking due to disability, or may be lost if, for example, a person has a stroke, is suffering from mental illness or develops dementia. The decisions could be about day-to-day things like what to wear or when to pay a bill, or they could be more important decisions such as where to live or whether to have a certain type of medical treatment. Under the Mental Capacity Act 2005, an individual must be given the opportunity, with support if required, to make their own decisions about all these matters, including those relating to finances.
The 2005 Act attempted to give a working definition on the basis of assuming a complete lack of capacity only as a last resort. The very first section of the Act sets out five guiding principles that have to be followed by all those dealing with incapacitated adults. These five principles inform the code of practice for Deputies and Attorneys which is legally enforceable and translates as:
- A presumption that you have mental capacity - It must be assumed you’re able to make your own decisions, unless it can be established that you can’t.
- The right to be supported to make a decision - You must be given as much practical help as possible to make your own decision before anyone decides you’re unable to.
- The right to make what appears to be unwise decisions - You shouldn’t be treated as unable to make a decision just because you make an unwise decision -we are all capable of making those!
- Best interests - Any decision made or action taken on your behalf must be made in your best interests.
- Least restrictive intervention - Anyone making a decision for you should consider all the alternatives and choose the one that is the least restrictive of your rights and freedoms.
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 mental capacity was an ‘all or nothing’ test under the Mental Health Act. The Act also recognises that ‘capacity’ or indeed ‘vulnerability’ is a spectrum and each individual is different. Being naïve or impressionable due to physical or psychological conditions does not necessarily mean that a person lacks the ability to understand the implications of a decision or cannot manage their finances.
If you are unable to or need support to voice your opinion and there is no one to speak on your behalf, such as a family member or friend, Attorney of Deputy, an Independent Mental Capacity Advocate (IMCA) may be instructed to help to protect your rights. In situations, where the decision is about serious medical treatment or a change of accommodation, an IMCA must be involved. It is usually the responsibility of the staff in the NHS or your local council to instruct an IMCA. More information about the role of an IMCA can be obtained from the Office of the Public Guardian.
Vulnerable individuals are at risk of being deprived of their liberty. Deprivation of Liberty Safeguards (DoLS) were introduced under the Mental Capacity Act 2005 to ensure that there is a legal framework in place to authorise and monitor situations where vulnerable individuals are deprived of their liberty and unable to consent to this due to their incapacity. The aim of the DoLS is to make sure that people are only deprived of their liberty when this is needed to keep them safe and provide the care or treatment they need. The safeguards ensure that the deprivation is properly authorised and monitored.
Disclaimer
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024
