The Mental Capacity Act came into force in two phases in April and October 2007.  It concerns people who lack mental capacity and those who take decisions on their behalf.  It clarifies many aspects of common law in relation to capacity and consent.

It provides a framework for people ages 16+ who may lack capacity to make decisions.  This may be due to a learning disability, stroke, illness, mental disorder, effects of drugs or alcohol or head injury.  It makes clear who can take decisions and how they should go about this.  It also enables people to plan for a time when they may lose capacity.  It will affect anyone who has contact with people who lack capacity.  The Act replaces current statutory schemes for enduring powers of Attorney and Court of Protection receivers with reformed and updated schemes.

The Act is underpinned by five statutory principles:

• A presumption of capacity - every adult has the right to make their own decisions and must be assumed to have capacity to do so, unless it is established that they lack capacity.
• Individuals being supported to make their own decisions - a person is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success.
• Unwise decisions - a person is not to be treated as unable to make a decision merely because he makes an unwise decision.
• Best Interests - 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 their best interests.
• Lease restrictive option - anything done for or on behalf of a person who lacks capacity should be the least restrictive of their rights and freedom of action.

Assessing lack of capacity -  the Act sets out a single clear test for deciding whether a person lacks capacity to make a particular decision.  A lack of capacity cannot be established merely by reference to a person's age, appearance, condition or aspect of a person's behaviour.

Court of Protection - the new Court will have jurisdiction relating to the whole Act and will be the final arbiter for capacity matters.  It will have its own procedures and nominated judges.

Lasting powers of attorney (LPAs) - the Act allows a person to appoint an attorney on their behalf if they should lose capacity in the future.  This includes decisions on health and welfare in addition to property and affairs.

Court appointed deputies - these will replace the current system of receivership in the Court of Protection.

Public Guardian - will be the registering authority for LPAs and deputies.

Criminal offence - a new criminal offence is introduced of ill treatment or neglect of a person who lacks capacity, punishable by imprisonment for up to five years.

Independent Mental Capacity Advocate (IMCA) - an IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them.

Advance decision to refuse treatment - statutory rules with clear safeguards confirm that people may make a decision in advance to refuse treatment if they should lose capacity in the future.

Further information can be found on the following websites:

Mental Capacity Act 2005 on the Department of Constitutional Affairs website

Public Guardianship Office

You can also obtain advice from:

City of York Council, Customer Advice Centre, 10/12 George Hudson Street, York YO1 6ZE, Tel: 01904 551550  Minicom: 01904 554120.