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The Mental Capacity Act 2005: 10 years in the making

Practice group: Elderly client legal services

01 June 2007

The astonishing scale and scope of the Mental Capacity Act ("MCA") 2005 almost vindicates its passage from conception (the initial Law Commission's Report on Mental Incapacity published in 1995) to Royal Assent on 7 April 2005.

Potentially affecting every adult in England and Wales — it governs delegated decision-making on behalf of adults who wish to plan for a loss of mental capacity; experience fluctuating degrees of capacity, and / or cases where the incapacitating condition has been present since birth.

Replacing Part 7 of the Mental Health Act ("MHA") 1983 and the whole of the Enduring Powers of Attorney ("EPA") Act 1985, the MCA momentum creates a new Court of Protection (with more comprehensive powers as an Office of the Supreme Court); an Office of the Public Guardian, and the much heralded statutory power of attorney - the Lasting Power of Attorney ("L PA").

The two forms of LPAs will govern (1) delegated decision-making concerning another's (financial) property / affairs (as with an EPA) and (2) personal welfare — which even extends to include the right to make life sustaining treatment decisions on another's behalf.

Such enormous scope almost justifies the mountain of material supporting this legislation, which includes a Code of Practice (of 184 pages) to which individuals will need to "have regard to" in operating under and within the ethos of this legislation.

The MCA was promoted as a comprehensive solution to the legal issues affecting people who lack capacity and those caring for them, treating or advising them. However, the long awaited change and any optimistic sanguinity must be tempered with a pessimistic realism — there will be teething problems upon implementation at the very least. For the practitioner, this friction will be most apparent in relation to LPAs.

Lasting Powers of Attorney

As of 1st October 2007 LPAs will replace the current form of an EPA (however all valid EPAs executed before this date remain effective and operative under the old regime).

If both a Property LPA and a Personal Welfare LPA are completed, two registration fees will be incurred. Each LPA could appoint different Attorneys who have very different powers. The prescribed forms enable guidance for powers to be limited or indeed certainly more defined than is possible at present under an EPA.

Under each LPA, Attorneys may be appointed to act jointly, independently, or indeed jointly in respect of specified decisions but independently for others.

As with EPAs, LPAs will not be revoked by the onset of mental incapacity, yet distinct from EPAs, this is not itself a trigger for registration. Rather an LPA must be registered with the new Office of the Public Guardian if the power is to be used and is consequently no indication of a Donor's capacity.

The registration requirement for use of an LPA will result in documents being registered whilst the Donor is still capable of managing their property and affairs and therefore confusion could arise as to where the decision-making power rests — with the Donor or with the Attorney(s)? Conversely, if the LPA is stored in a Donor's bottom drawer until the need to use it arises, then any urgency surrounding that situation will simply have to wait until the registration process has run its course.

Each LPA includes a Certificate of Capacity. This must be completed by an individual who has known the Donor for more than two years, or someone who has the necessary skills to assess (1) whether the Donor understands the purpose of the LPA and the scope of authority created under the document; (2) that no undue pressure or fraud has been used to induce the Donor to create the document and (3) that there is nothing else which would prevent the LPA from being validly created. It is feared (but accepted) that current EPAs are open to abuse as there are no safeguards to monitor Attorneys acting under an unregistered EPA and no way of compelling registration if the Donor's mental capacity wanes. However, the barriers to the completion of 24/25 page LPAs, which then require registration before use and a certificate of capacity on completion, may result in complexities (and costs) which are a hurdle too high for too many clients.

Under the MCA, capacity is person, time and decision specific (and indeed a Personal Welfare LPA can only be used in circumstances where the Donor lacks the requisite mental capacity to make the particular decision). The Act sets out five key principles (Sections 1-4 MCA), which underpin the legislation:

• A person must be presumed to have capacity unless it is established that they do not. There is no longer a blanket approach whereby a client of a certain age or with a particular diagnosis means that an individual lacks capacity.

• A person must not be treated as unable to make a decision unless all practicable steps have been taken to help them do so. Of course, what is reasonable will depend upon the decision to be made and the timescale within which the decision is required.

• A person must not be treated as unable to make a decision just because they make an unwise decision. We've all probably made one of those, and who decides what is 'unwise'?

If having presumed that the client has the requisite capacity to make the particular decision, used all practical steps to help them to achieve the necessary level of capacity and accepted that they may make an unwise decision if they have the capacity to do so — if the decision is to be made on their behalf it must be made in accordance with the final two principles:

• All decisions made on behalf of a person who lacks capacity must be made in their 'best interests'.

There is no definition of best interests within the legislation, but rather a minimum checklist which includes the need to ascertain what the client's past wishes, feelings and beliefs? How would they be most likely to arrive at a decision on this particular matter? What factors would influence their judgement?

• Finally, any decision made on behalf of an individual who lacks capacity must be the least restrictive option in terms of their rights and freedoms.

This taster of the challenges facing practitioners, seeks to emphasise how important it will be for us to understand the new landscape of mental capacity which we will be operating in. This will, as of 1st October 2007, give rise to the expectation that we will then be able to confidently navigate often vulnerable and elderly clients through the same minefield.

For more information please contact the private client practice on 01753 279031 or at privateclient@bpcollins.co.uk.