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Mental Capacity Act 2005 (c. 9)

(The document as of February, 2008)

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Mental Capacity Act 2005

2005 CHAPTER 9

CONTENTS

Content
  1. Part 1

    Persons who lack capacity

    1. The principles

      1. 1. The principles

    2. Preliminary

      1. 2. People who lack capacity

      2. 3. Inability to make decisions

      3. 4. Best interests

      4. 5. Acts in connection with care or treatment

      5. 6. Section 5 acts: limitations

      6. 7. Payment for necessary goods and services

      7. 8. Expenditure

    3. Lasting powers of attorney

      1. 9. Lasting powers of attorney

      2. 10. Appointment of donees

      3. 11. Lasting powers of attorney: restrictions

      4. 12. Scope of lasting powers of attorney: gifts

      5. 13. Revocation of lasting powers of attorney etc.

      6. 14. Protection of donee and others if no power created or power revoked

    4. General powers of the court and appointment of deputies

      1. 15. Power to make declarations

      2. 16. Powers to make decisions and appoint deputies: general

      3. 17. Section 16 powers: personal welfare

      4. 18. Section 16 powers: property and affairs

      5. 19. Appointment of deputies

      6. 20. Restrictions on deputies

      7. 21. Transfer of proceedings relating to people under 18

    5. Powers of the court in relation to lasting powers of attorney

      1. 22. Powers of court in relation to validity of lasting powers of attorney

      2. 23. Powers of court in relation to operation of lasting powers of attorney

    6. Advance decisions to refuse treatment

      1. 24. Advance decisions to refuse treatment: general

      2. 25. Validity and applicability of advance decisions

      3. 26. Effect of advance decisions

    7. Excluded decisions

      1. 27. Family relationships etc.

      2. 28. Mental Health Act matters

      3. 29. Voting rights

    8. Research

      1. 30. Research

      2. 31. Requirements for approval

      3. 32. Consulting carers etc.

      4. 33. Additional safeguards

      5. 34. Loss of capacity during research project

    9. Independent mental capacity advocate service

      43. Codes of practice: procedure

    10. 44. Ill-treatment or neglect

  • Part 2

    The Court of Protection and the Public Guardian

    1. The Court of Protection

      1. 45. The Court of Protection

      2. 46. The judges of the Court of Protection

    2. Supplementary powers

      1. 47. General powers and effect of orders etc.

      2. 48. Interim orders and directions

      3. 49. Power to call for reports

    3. Practice and procedure

      1. 50. Applications to the Court of Protection

      2. 51. Court of Protection Rules

      3. 52. Practice directions

      4. 53. Rights of appeal

    4. Fees and costs

      1. 54. Fees

      2. 55. Costs

      3. 56. Fees and costs: supplementary

    5. The Public Guardian

      1. 57. The Public Guardian

      2. 58. Functions of the Public Guardian

      3. 59. Public Guardian Board

      4. 60. Annual report

    6. Court of Protection Visitors

      1. 61. Court of Protection Visitors

  • Part 3

    Miscellaneous and general

    1. Declaratory provision

      1. 62. Scope of the Act

    2. Private international law

      1. 63. International protection of adults

    3. General

      1. 64. Interpretation

      2. 65. Rules, regulations and orders

      3. 66. Existing receivers and enduring powers of attorney etc.

      4. 67. Minor and consequential amendments and repeals

      5. 68. Commencement and extent

      6. 69. Short title

    1. Schedule 1

      Lasting powers of attorney: formalities

      1. Part 1

        Making instruments

      2. Part 2

        Registration

      3. Part 3

        Cancellation of registration and notification of severance

      4. Part 4

        Records of alterations in registered powers

    2. Schedule 2

      Property and affairs: supplementary provisions

    3. Schedule 3

      International protection of adults

      1. Part 1

        Preliminary

      2. Part 2

        Jurisdiction of competent authority

      3. Part 3

        Applicable law

      4. Part 4

        Recognition and enforcement

      5. Part 5

        Co-operation

      6. Part 6

        General

    4. Schedule 4

      Provisions applying to existing enduring powers of attorney

      1. Part 1

        Enduring powers of attorney

      2. Part 2

        Action on actual or impending incapacity of donor

      3. Part 3

        Notification prior to registration

      4. Part 4

        Registration

      5. Part 5

        Legal position after registration

      6. Part 6

        Protection of attorney and third parties

      7. Part 7

        Joint and joint and several attorneys

      8. Part 8

        Interpretation

    5. Schedule 5

      Transitional provisions and savings

      1. Part 1

        Repeal of Part 7 of the Mental Health Act 1983

      2. Part 2

        Repeal of the Enduring Powers of Attorney Act 1985

    6. Schedule 6

      Minor and consequential amendments

    7. Schedule 7

      Repeals

  • An Act to make new provision relating to persons who lack capacity; to establish a superior court of record called the Court of Protection in place of the office of the Supreme Court called by that name; to make provision in connection with the Convention on the International Protection of Adults signed at the Hague on 13th January 2000; and for connected purposes.

    [7th April 2005]

    Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:--



    Part 1 Persons who lack capacity

    The principles

    1 The 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.



    Preliminary

    2 People who lack capacity

    (1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

    (2) It does not matter whether the impairment or disturbance is permanent or temporary.

    (3) A lack of capacity cannot be established merely by reference to--

    (a) a person's age or appearance, or

    (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

    (4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

    (5) No power which a person ("D") may exercise under this Act--

    (a) in relation to a person who lacks capacity, or

    (b) where D reasonably thinks that a person lacks capacity,

    is exercisable in relation to a person under 16.

    (6) Subsection (5) is subject to section 18(3).

    3 Inability to make decisions

    (1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable--

    (a) to understand the information relevant to the decision,

    (b) to retain that information,

    (c) to use or weigh that information as part of the process of making the decision, or

    (d) to communicate his decision (whether by talking, using sign language or any other means).

    (2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

    (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

    (4) The information relevant to a decision includes information about the reasonably foreseeable consequences of--

    (a) deciding one way or another, or

    (b) failing to make the decision.

    4 Best interests

    (1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of--

    (a) the person's age or appearance, or

    (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

    (2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

    (3) He must consider--

    (a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and

    (b) if it appears likely that he will, when that is likely to be.

    (4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

    (5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

    (6) He must consider, so far as is reasonably ascertainable--

    (a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

    (b) the beliefs and values that would be likely to influence his decision if he had capacity, and

    (c) the other factors that he would be likely to consider if he were able to do so.

    (7) He must take into account, if it is practicable and appropriate to consult them, the views of--

    (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

    (b) anyone engaged in caring for the person or interested in his welfare,

    (c) any donee of a lasting power of attorney granted by the person, and

    (d) any deputy appointed for the person by the court,

    as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).

    (8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which--

    (a) are exercisable under a lasting power of attorney, or

    (b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.

    (9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.

    (10) "Life-sustaining treatment" means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.

    (11) "Relevant circumstances" are those--

    (a) of which the person making the determination is aware, and

    (b) which it would be reasonable to regard as relevant.

    5 Acts in connection with care or treatment

    (1) If a person ("D") does an act in connection with the care or treatment of another person ("P"), the act is one to which this section applies if--

    (a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and

    (b) when doing the act, D reasonably believes--

    (i) that P lacks capacity in relation to the matter, and

    (ii) that it will be in P's best interests for the act to be done.

    (2) D does not incur any liability in relation to the act that he would not have incurred if P--

    (a) had had capacity to consent in relation to the matter, and

    (b) had consented to D's doing the act.

    (3) Nothing in this section excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.

    (4) Nothing in this section affects the operation of sections 24 to 26 (advance decisions to refuse treatment).

    6 Section 5 acts: limitations

    (1) If D does an act that is intended to restrain P, it is not an act to which section 5 applies unless two further conditions are satisfied.

    (2) The first condition is that D reasonably believes that it is necessary to do the act in order to prevent harm to P.

    (3) The second is that the act is a proportionate response to--

    (a) the likelihood of P's suffering harm, and

    (b) the seriousness of that harm.

    (4) For the purposes of this section D restrains P if he--

    (a) uses, or threatens to use, force to secure the doing of an act which P resists, or

    (b) restricts P's liberty of movement, whether or not P resists.

    (5) But D does more than merely restrain P if he deprives P of his liberty within the meaning of Article 5(1) of the Human Rights Convention (whether or not D is a public authority).

    (6) Section 5 does not authorise a person to do an act which conflicts with a decision made, within the scope of his authority and in accordance with this Part, by--

    (a) a donee of a lasting power of attorney granted by P, or

    (b) a deputy appointed for P by the court.

    (7) But nothing in subsection (6) stops a person--

    (a) providing life-sustaining treatment, or

    (b) doing any act which he reasonably believes to be necessary to prevent a serious deterioration in P's condition,

    while a decision as respects any relevant issue is sought from the court.

    7 Payment for necessary goods and services

    (1) If necessary goods or services are supplied to a person who lacks capacity to contract for the supply, he must pay a reasonable price for them.

    (2) "Necessary" means suitable to a person's condition in life and to his actual requirements at the time when the goods or services are supplied.

    8 Expenditure

    (1) If an act to which section 5 applies involves expenditure, it is lawful for D--

    (a) to pledge P's credit for the purpose of the expenditure, and

    (b) to apply money in P's possession for meeting the expenditure.

    (2) If the expenditure is borne for P by D, it is lawful for D--

    (a) to reimburse himself out of money in P's possession, or

    (b) to be otherwise indemnified by P.

    (3) Subsections (1) and (2) do not affect any power under which (apart from those subsections) a person--

    (a) has lawful control of P's money or other property, and

    (b) has power to spend money for P's benefit.



    Lasting powers of attorney

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    9 Lasting powers of attorney

    (1) A lasting power of attorney is a power of attorney under which the donor ("P") confers on the donee (or donees) authority to make decisions about all or any of the following--

    (a) P's personal welfare or specified matters concerning P's personal welfare, and

    (b) P's property and affairs or specified matters concerning P's property and affairs,

    and which includes authority to make such decisions in circumstances where P no longer has capacity.

    (2) A lasting power of attorney is not created unless--

    (a) section 10 is complied with,

    (b) an instrument conferring authority of the kind mentioned in subsection (1) is made and registered in accordance with Schedule 1, and

    (c) at the time when P executes the instrument, P has reached 18 and has capacity to execute it.

    (3) An instrument which--

    (a) purports to create a lasting power of attorney, but

    (b) does not comply with this section, section 10 or Schedule 1,

    confers no authority.

    (4) The authority conferred by a lasting power of attorney is subject to--

    (a) the provisions of this Act and, in particular, sections 1 (the principles) and 4 (best interests), and

    (b) any conditions or restrictions specified in the instrument.

    10 Appointment of donees

    (1) A donee of a lasting power of attorney must be--

    (a) an individual who has reached 18, or

    (b) if the power relates only to P's property and affairs, either such an individual or a trust corporation.

    (2) An individual who is bankrupt may not be appointed as donee of a lasting power of attorney in relation to P's property and affairs.

    (3) Subsections (4) to (7) apply in relation to an instrument under which two or more persons are to act as donees of a lasting power of attorney.

    (4) The instrument may appoint them to act--

    (a) jointly,

    (b) jointly and severally, or

    (c) jointly in respect of some matters and jointly and severally in respect of others.

    (5) To the extent to which it does not specify whether they are to act jointly or jointly and severally, the instrument is to be assumed to appoint them to act jointly.

    (6) If they are to act jointly, a failure, as respects one of them, to comply with the requirements of subsection (1) or (2) or Part 1 or 2 of Schedule 1 prevents a lasting power of attorney from being created.

    (7) If they are to act jointly and severally, a failure, as respects one of them, to comply with the requirements of subsection (1) or (2) or Part 1 or 2 of Schedule 1--

    (a) prevents the appointment taking effect in his case, but

    (b) does not prevent a lasting power of attorney from being created in the case of the other or others.

    (8) An instrument used to create a lasting power of attorney--

    (a) cannot give the donee (or, if more than one, any of them) power to appoint a substitute or successor, but

    (b) may itself appoint a person to replace the donee (or, if more than one, any of them) on the occurrence of an event mentioned in section 13(6)(a) to (d) which has the effect of terminating the donee's appointment.

    11 Lasting powers of attorney: restrictions

    (1) A lasting power of attorney does not authorise the donee (or, if more than one, any of them) to do an act that is intended to restrain P, unless three conditions are satisfied.

    (2) The first condition is that P lacks, or the donee reasonably believes that P lacks, capacity in relation to the matter in question.

    (3) The second is that the donee reasonably believes that it is necessary to do the act in order to prevent harm to P.

    (4) The third is that the act is a proportionate response to--

    (a) the likelihood of P's suffering harm, and

    (b) the seriousness of that harm.

    (5) For the purposes of this section, the donee restrains P if he--

    (a) uses, or threatens to use, force to secure the doing of an act which P resists, or

    (b) restricts P's liberty of movement, whether or not P resists,

    or if he authorises another person to do any of those things.

    (6) But the donee does more than merely restrain P if he deprives P of his liberty within the meaning of Article 5(1) of the Human Rights Convention.

    (7) Where a lasting power of attorney authorises the donee (or, if more than one, any of them) to make decisions about P's personal welfare, the authority--

    (a) does not extend to making such decisions in circumstances other than those where P lacks, or the donee reasonably believes that P lacks, capacity,

    (b) is subject to sections 24 to 26 (advance decisions to refuse treatment), and

    (c) extends to giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P.

    (8) But subsection (7)(c)--

    (a) does not authorise the giving or refusing of consent to the carrying out or continuation of life-sustaining treatment, unless the instrument contains express provision to that effect, and

    (b) is subject to any conditions or restrictions in the instrument.

    12 Scope of lasting powers of attorney: gifts

    (1) Where a lasting power of attorney confers authority to make decisions about P's property and affairs, it does not authorise a donee (or, if more than one, any of them) to dispose of the donor's property by making gifts except to the extent permitted by subsection (2).

    (2) The donee may make gifts--

    (a) on customary occasions to persons (including himself) who are related to or connected with the donor, or

    (b) to any charity to whom the donor made or might have been expected to make gifts,

    if the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of the donor's estate.

    (3) "Customary occasion" means--

    (a) the occasion or anniversary of a birth, a marriage or the formation of a civil partnership, or

    (b) any other occasion on which presents are customarily given within families or among friends or associates.

    (4) Subsection (2) is subject to any conditions or restrictions in the instrument.

    13 Revocation of lasting powers of attorney etc.

    (1) This section applies if--

    (a) P has executed an instrument with a view to creating a lasting power of attorney, or

    (b) a lasting power of attorney is registered as having been conferred by P,

    and in this section references to revoking the power include revoking the instrument.

    (2) P may, at any time when he has capacity to do so, revoke the power.

    (3) P's bankruptcy revokes the power so far as it relates to P's property and affairs.

    (4) But where P is bankrupt merely because an interim bankruptcy restrictions order has effect in respect of him, the power is suspended, so far as it relates to P's property and affairs, for so long as the order has effect.

    (5) The occurrence in relation to a donee of an event mentioned in subsection (6)--

    (a) terminates his appointment, and

    (b) except in the cases given in subsection (7), revokes the power.

    (6) The events are--

    (a) the disclaimer of the appointment by the donee in accordance with such requirements as may be prescribed for the purposes of this section in regulations made by the Lord Chancellor,

    (b) subject to subsections (8) and (9), the death or bankruptcy of the donee or, if the donee is a trust corporation, its winding-up or dissolution,

    (c) subject to subsection (11), the dissolution or annulment of a marriage or civil partnership between the donor and the donee,

    (d) the lack of capacity of the donee.

    (7) The cases are--

    (a) the donee is replaced under the terms of the instrument,

    (b) he is one of two or more persons appointed to act as donees jointly and severally in respect of any matter and, after the event, there is at least one remaining donee.

    (8) The bankruptcy of a donee does not terminate his appointment, or revoke the power, in so far as his authority relates to P's personal welfare.

    (9) Where the donee is bankrupt merely because an interim bankruptcy restrictions order has effect in respect of him, his appointment and the power are suspended, so far as they relate to P's property and affairs, for so long as the order has effect.

    (10) Where the donee is one of two or more appointed to act jointly and severally under the power in respect of any matter, the reference in subsection (9) to the suspension of the power is to its suspension in so far as it relates to that donee.

    (11) The dissolution or annulment of a marriage or civil partnership does not terminate the appointment of a donee, or revoke the power, if the instrument provided that it was not to do so.

    14 Protection of donee and others if no power created or power revoked

    (1) Subsections (2) and (3) apply if--

    (a) an instrument has been registered under Schedule 1 as a lasting power of attorney, but

    (b) a lasting power of attorney was not created,

    whether or not the registration has been cancelled at the time of the act or transaction in question.

    (2) A donee who acts in purported exercise of the power does not incur any liability (to P or any other person) because of the non-existence of the power unless at the time of acting he--

    (a) knows that a lasting power of attorney was not created, or

    (b) is aware of circumstances which, if a lasting power of attorney had been created, would have terminated his authority to act as a donee.

    (3) Any transaction between the donee and another person is, in favour of that person, as valid as if the power had been in existence, unless at the time of the transaction that person has knowledge of a matter referred to in subsection (2).

    (4) If the interest of a purchaser depends on whether a transaction between the donee and the other person was valid by virtue of subsection (3), it is conclusively presumed in favour of the purchaser that the transaction was valid if--

    (a) the transaction was completed within 12 months of the date on which the instrument was registered, or

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