What does the Mental Capacity Act do?
Why do we need this Act?
Who will this legislation help?
Why has it taken so long for this legislation?
What is an independent mental capacity advocate (IMCA)?
Who gets an independent mental capacity advocate (IMCA)?
What is a Lasting Power of Attorney (LPA)?
Can I apply for an LPA now?
What will happen to my EPA?
Can I change my EPA to an LPA?
What is a living will?
Will there be an "easy read" version of the Act?
What does the Mental Capacity Act do?
The Act governs decision-making on behalf of adults who lack mental capacity,
both where they lose capacity at some point in their lives, and where
the incapacitating condition has been present since birth. It covers
all decisions, including personal welfare and financial matters, and
covers decision-making on their behalf by attorneys, or court-appointed "deputies".
It also clarifies the position if formal process has not been adopted.
Why do we need this Act?
The current law on decision-making for adults who lack capacity has evolved
bit by bit. Existing attorneys or receivers only make decisions on financial
matters. The Act provides clarity about who can make decisions and how
to do it. It protects vulnerable people, carers and professionals.
Who will this legislation help?
Millions of people - including those who lack capacity, the estimated
6 million people who care for them and professionals who have contact
with them. It will also help those who wish to prepare for a time when
they might lose capacity.
Why has it taken so long for this legislation?
The Act is a result of many years of consultation and work. The Law Commission
began the process in 1989, producing a report and draft Bill in 1995.
The Government responded in 1997 with a green paper, and a policy statement
in 1999. A draft Mental Incapacity Bill was published in June 2003 and
examined by a Joint Committee of both Houses of Parliament. The re-named
Mental Capacity Bill was introduced to Parliament on 17 June 2004 and
received Royal Assent on 7 April 2005, and it became law.
What is an independent mental capacity advocate (IMCA)?
When a person who lacks mental capacity has to make a serious decision
about treatment or where they live, an independent mental capacity advocate
(IMCA) is appointed to support and represent them. The IMCA voices the
person's wishes, feelings, beliefs and values and they make the
decision maker aware of all relevant information. They can also challenge
the decision maker.
Who gets an independent mental capacity advocate (IMCA)?
An IMCA will be provided when someone with no friends or family to support
them, is faced with a decision about a serious medical treatment or their
accommodation. The Government has made a clear commitment to consult with
external partners on extending the service to other groups and situations.
What is a Lasting Power of Attorney (LPA)?
A Lasting Power of Attorney (LPA) is a new statutory form of power of
attorney created by the Mental Capacity Act. Anyone who has capacity
to do so may choose a person (an "attorney") to take decisions
on their behalf if they subsequently lose capacity. The LPA will replace
the Enduring Power of Attorney (EPA) currently provided for by the Enduring
Powers of Attorney Act 1985. Unlike an EPA, an LPA can extend to personal
welfare matters as well as property and affairs.
Can I apply for an LPA now?
No. This will not be possible until the Act is implemented because we
need time to make the necessary regulations and to establish the Public
Guardian who will be the registering authority.
What will happen to my EPA?
Although the Enduring Powers of Attorney Act 1985 will be repealed on
implementation of the Mental Capacity Act, the legal effect of an EPA
already made under the current law will be preserved.
Can I change my EPA to an LPA?
No. You will need to draw up a separate LPA, although you will be able
to go on using an EPA even after the Act is implemented.
What is a living will?
A living will is not a legal term. It is referred to in the Mental Capacity
Act as an advance decision to refuse treatment. It means that you can
make a decision now, about treatment you would not want in future when
you have lost capacity. An advance decision must be in writing, signed
and witnessed, and if it applies to life-sustaining treatment there
must be a statement that the decision stands even if life is at risk.
Will there be an "easy read" version of the Act?
Work has already begun on an accessible or easy read version of the summary of the Mental Capacity Act which will be posted on the website when finalised. We are currently exploring with stakeholders producing other guidance on the Act in accessible formats.