Introducing the Mental Capacity Act 2005

What is mental capacity?

Every day, we make decisions about our lives.  These decisions could be about simple things like what we eat and what we wear.  They could also be about more major things like our health, our care and our finances.  Our mental capacity affects how easily we are able to make such decisions.  Some people may lack mental capacity to make certain decisions because they have:

• dementia,
• a mental health problem,
• a brain injury or a stroke or
• a learning disability.

What is the Mental Capacity Act?

The Mental Capacity Act is a law which comes into force in 2007.  It will cover all sorts of decisions where people aged 16 and over may lack capacity.  It also allows for people to plan ahead if they think they may lack capacity in the future.

What happens if I'm unable to make some decisions for myself?

The Act says:

• you should be given help to make your own decisions;
• someone should make an assessment of your capacity to decide if you are able to make a particular decision at a particular time;
• even if you find some decisions difficult, you may still be able to make other decisions for yourself;
• if someone has to make a decision on your behalf they should still involve you in this as much as possible;
• someone making a decision on your behalf must do so in your best interests; and
• an Independent Mental Capacity Advocate (IMCA) can represent you if you lack capacity to make certain important decisions and there is no one else who can be consulted.

Can I plan ahead for the future?

Yes.  The Act allows you to appoint someone to make decisions about your health, care and finances should you ever lack the capacity to make these decisions yourself.  This is called a Lasting Power of Attorney (LPA) for which there may be a charge.

The Act also allows you to make a decision to refuse in advance particular medical treatment.  This could then come into force should you lack capacity to refuse such treatment in the future.

How will the Act affect my role as a carer or family member?

The Act:

• will help you understand how and when you can act on behalf of someone who lacks capacity to make decisions;
• makes clear the safeguards and limitations if you are doing this;
• says that you should be consulted by professionals when, for example, a doctor makes a decision about treatment for a family member who lacks capacity.

What else does the new Act do?

The Act:

• sets up a new Court of Protection and a Public Guardian to safeguard people who lack capacity where such powers are needed;
• introduces a new criminal offence of ill treatment or wilful neglect of a person who lacks capacity; and
• does not change your powers if you are a receiver for someone who lacks capacity or if you are acting on behalf of someone under an Enduring Power of Attorney.