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 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.

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 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 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.

A Property and Affairs Lasting Power of Attorney (LPA) allows you to plan ahead by choosing one or more persons you trust or a professional such as a Trust Corporation (your Attorney’s) to make decisions and take appropriate actions on your behalf regarding your property and financial affairs.

Your Attorney or Attorney’s can manage your finances and property whilst you still have capacity as well as when you lack capacity. For example, it may be easier for you to give someone the power to carry out tasks such as paying your bills or collecting your benefits or other income.

This might be for lots of reasons: you might find it difficult to get about or be housebound or may find talking on the telephone difficult, or you might be working or living abroad for long periods of time.

You can decide what power and the extent of the power to give your Attorney(s) when making decisions about any or all of your property and affairs matters. This could include paying your bills, collecting your benefits or selling your house.

This type of LPA does not allow the person(s) you have chosen (your Attorney) to make decisions about your personal welfare. If you want someone to be able to make personal welfare decisions on your behalf you will need to make a personal welfare LPA.

A Personal Welfare Lasting Power of Attorney (LPA) allows you to plan ahead with regard to your personal healthcare and welfare by choosing one or more people to make decisions on your behalf.
These personal welfare decisions can only be taken by somebody else (a close friend or family member) when you lack the ability to make decisions regarding your treatment or other personal matters for yourself; for example if you are unconscious or because of the onset of a condition such as dementia.
The Attorney(s) you appoint to make personal welfare decisions will only be able to use this power once the LPA has been registered and provided that you cannot make the required decision for yourself.
You can decide to give your Attorney the power to make decisions about any or all of your personal welfare matters, including healthcare matters. This could involve some significant decisions, such as:

• giving or refusing consent to particular types of health care, including medical treatment decisions; or
• whether you continue to live in your own home, perhaps with help and support from social services, or whether residential care would be more appropriate for you.

You may wish your Attorney(s) to have the power to make decisions about ‘life-sustaining treatment’, if you do then you have to expressly give your chosen Attorney(s) the power to make such decisions by completing section 5 of the LPA form.
You can also give your Attorney(s) the power to make decisions about day-to-day aspects of your personal welfare, such as your diet, your dress, or your daily routine. It is up to you which of these decisions you want to allow your Attorney to make.

To make an LPA, you must use a special form which you can download from the Government’s website.

The LPA Form: https://www.lastingpowerofattorney.service.gov.uk/home

It is advisable to seek professional advice when making an LPA to ensure that the forms are completed correctly. Many members of the Society offer LPA services.

You can find a member using the search bar below, or visit our ‘Find a Member‘ page. You can also contact us at head office and we will be more than happy to help.