Lasting Power of Attorney

In April 2007 the first part of the Mental Capacity Act 2005 finally was published and brought with it a whole new set of rules through a Code of Practice for the professional dealing with clients who are elderly, vulnerable and those at risk and in danger of abuse and for individuals who lack mental capacity.

The second part dealing mainly with the introduction of the Lasting Power of Attorney became effective from October 1 2007 replacing immediately any Enduring Power of Attorney’s (EPA) that had not been correctly completed, this has no effect on any EPA that had already been registered with the Court of Protection or any existing unregistered EPA providing it was fully completed with the signatures of the donor and his or her attorney’s and all signatures correctly witnessed.

The Act

Part 1: Persons who lack capacity

Part 1 contains provisions defining “persons who lack capacity”. It contains a set of key principles and sets out a checklist to be used in ascertaining a person’s best interests. It deals with liability for actions in connection with the care or treatment of a person who lacks capacity to consent to what is done. Part 1 also establishes a new statutory scheme for “lasting” powers of attorney which may extend to personal welfare (including health care) matters. It sets out the jurisdiction of the new Court of Protection to make declarations and orders and to appoint substitute decision-makers (“deputies”), where a person lacks capacity. This Part also sets out rules about advance decisions to refuse medical treatment and creates new safeguards controlling many types of research involving people who lack capacity. It establishes a system for providing independent mental capacity advocates for particularly vulnerable people. It also provides for codes of practice to give guidance about the legislation and creates a new offence of neglect or ill-treatment.

Part 2: The Court of Protection and the Public Guardian

Part 2 establishes a new superior court of record, to be known as the Court of Protection, and provides for its judges and procedures. It also establishes a new statutory official, the Public Guardian, to support the work of the court. Provision is also made for Court of Protection Visitors.

Part 3: Miscellaneous and General

Part 3 deals with private international law and transitional and other technical provisions and includes a declaratory provision that nothing in the Act is to be taken to affect the law relating to unlawful killing or assisting suicide. ECHR issues arise in relation to a number of provisions.

The Act Set Certain Basic Principles:

1. The following principles apply for the purposes of this Act.
2. A person must be assumed to have capacity unless it is established that he lacks capacity.
3. 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.
4. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
5. 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.
6. 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.