The Mental Capacity Act 2005, the overriding Presumption of Capacity & the role of third parties

The Act itself

The introduction of the Mental Capacity Act 2005 (the Act), which came into force on the 1 April 2007 in England and Wales, thankfully brought with it a statutory framework which is widely quoted as aiming to “empower and protect vulnerable people who cannot make decisions for themselves”.

The purpose of the Act was to replace previous statutory regimes which covered Enduring Powers of Attorney (EPAs) and Court of Protection ‘Receivers’.

Thus, EPAs were replaced by Lasting Powers of Attorney (LPAs) from 1 October 2007 and Court of Protection Receivers were replaced with Court of Protection ‘Deputies’.

(see Here for the difference between EPAs, LPAs and GPAs and the ongoing use of EPAs).

The Act and the ‘Vulnerable Adult‘

The Act sets out guidance regarding a huge range of decisions third parties can make on behalf of a ‘vulnerable’ person.

There is no exhaustive list as to what amounts to a ‘vulnerable adult’ in the UK and vulnerability can even include someone experiencing cultural barriers and literacy issues.

However, for the most part, a vulnerability is usually described as someone at a higher risk of harm than others – The Care Act 2014 s42.

Numerous other Statutes have thereafter implemented the s42 ‘higher risk of harm’ definition and vulnerability therefore generally applies to a person over the age of eighteen and to whom the (UK) State has specific responsibilities to safeguard, including but not limited to a person:

• living within residential or sheltered accommodation
• receiving certain types of health and social care
• receiving certain types of welfare support
• detained in lawful custody
• of low income
• experiencing bereavement, medicinal impairment and even threat of deportation.

The overriding ‘Presumption of Capacity’

Perhaps the Act’s biggest achievement is that there is now an overriding legal ‘Presumption’ as to a person’s capacity, incorporating 5 main “Principles”, which must be applied and surpassed before capacity can be deemed lost.

In fact, the Presumption is considered so vitally important to the Act that it is set out at the very outset at s1. The 5 main Principals therein are:

1. it must be assumed a person is able to make each individual decision for themselves until it is proven they cannot;
2. a person must be supported, assisted and aided to make as many of their own decisions as they can before a third party takes control;
3. it cannot be assumed a person does not have capacity to make a decision just because a third party believes their decision is unwise or wrong;
4. once it is established a person cannot make their own specific decision, any decision made on their behalf must be in their best interests only and only in very specific circumstances should the rights and interests of another person be factored in;
5. when making a final decision on behalf of another person, it must first be established that there is no alternative available decision less restrictive on the person’s basic rights and freedoms.

The basic Presumption, therefore, is that a person must be deemed to have capacity until it is established that they do not – the burden now falling on the third party to disprove.

It is worth noting however that there is no ‘one size fits all’ when it comes to decision-making and every decision must be assessed at the appropriate level. This is known as ‘decision specific’ decision-making meaning every issue at hand must be broken down and treated as an individual concern whereby the vulnerable person must be given every opportunity (within the Principles at the very least) to be involved – that is of course, unless doing so would not be in their best interests. Perhaps because it would be far too distressing for them to know full details, such as explaining to someone in long-term care that their house needs to be sold.

Third party decision making following an established lack of capacity

Under the Act, third parties are now provided with guidance regarding decisions surrounding:

Finances, i.e. how and by whom finances are managed, how future estate beneficiaries may be regarded; how care fees are paid; whether estate assets are protected and if so, to what extent and how; whether an Attorney may make a gift either to themselves, charities or other family members; etc and

Health, i.e. decisions relating to their care surroundings; care needs; how a person dresses; what they eat and what medication or treatments they do or do not receive; etc.

Thus, the Act sets out to provide approved persons such as attorneys, deputies, carers, professionals, medics and the Court of Protection with powers over some highly emotive and sensitive areas of a person’s life and wellbeing.

But what about spouses or ‘next of kin’?

Notably a spouse or next of kin is not listed as a body with specific legal standing and even owning assets in joint names with the vulnerable person (perhaps spouses who had joint accounts prior to one losing capacity) does not qualify the capable spouse to take control over the joint asset without formal permission.

In fact, if banks, building societies etc. become aware a joint owner has lost capacity then they should place an immediate freeze on all joint monies until the capable spouse is able to provide either a (registered) Power of Attorney or Deputyship Order showing they are legally able to take control of the vulnerable person’s finances. Again, this is even where accounts comprise of joint monies.

The issue of joint assets can be further exacerbated where the capable spouse is attempting to deal with a joint property. Particularly if trying to sell that joint property – perhaps to downsize for manageability or to move closer to family etc.

If there is no LPA is in place at the time the incapable spouse (or other family member) is no longer able to decide on an Attorney themselves, then the capable spouse (or other relative) cannot rely on the Act providing statutory powers in the same way it does for other third parties and the only recourse for a relative is via the Court of Protection Deputyship route.

It is also not the case that a next of kin has any decision-making powers when it comes to a loved one’s health and care needs. Of course, medical treating teams will consult with and have regard for the family’s wishes and their knowledge of the bespoke wishes and feelings of their loved one, but without a Health Power of Attorney in place, decisions as to treatment (or non-treatment) lies with the health professionals. This could even extend to the care home a loved one is moved to and whether their medication is altered etc.

For family to have an overruling say over health care teams, medics, the local authority, social workers, care homes etc, a Health and Welfare Lasting Power of Attorney should be in place beforehand.

NB a person can only make an LPA whilst they have capacity and understanding. Many people consider it something they need to address ‘later down the line’ when things start to take a turn, but in actual fact an LPA is just like a Will. It is a document you hope you will never need (at least not for a long time) but having one in place early means your wishes, and your loved one’s peace of mind, have been addressed early.

Of course, there is no substitute for bespoke legal advice, but if you do not have a Power of Attorney in place currently and your circumstances are straightforward, then it is entirely possible to create your own new Lasting Power of Attorney online (for an explanation as to the difference between the types of Powers of Attorney see HERE).