Law Weblog

Living wills to be part of the law of England and Wales

Friday 8 April 2005 at 10:55 pm | In News | Post Comment

The Mental Capacity Act 2005 has received Royal Assent.  The law which will cover England and Wales, provides a statutory framework for people who may not be able to make their own decisions for example because of a learning disability, an illness such as dementia or mental health problems. It sets out who can take decisions, in which situations, and how they should go about this.

The Acts key provisions are:
> Five key principles, which make it clear that a person should be assumed to have capacity unless proven otherwise.
> A best interest’s checklist for people acting on behalf of others. This includes consideration of the person’s wishes, feelings, beliefs and values (including any written advance statement made by them when they had capacity) and taking account of the views of their family and friends.
> Protection to carers and professionals, subject to rules and limitations, to lawfully care for someone who cannot consent without incurring liability.
> Lasting powers of attorney (LPA) – for people to appoint an attorney of their choosing to act on their behalf if they should lose capacity in the future.
> For the court to appoint deputies to make decisions on behalf of a person about matters in relation to which that person lacks capacity.
> Creation of Independent Mental Capacity Advocates to support and represent people lacking capacity who have no one else to speak for them when decisions need to be taken about serious medical treatment and long-term residential care.
> New safeguards controlling many types of research involving people who lack capacity.
> For a person whilst they have capacity, if they so wish, to make an advance decision to refuse treatment, known as living wills.
> The introduction of a criminal offence of ill treatment or neglect of a person who lacks capacity, with a maximum sentence of five years.

The Act creates two new public bodies:
1. Court of Protection – the new court will have jurisdiction in relation to the Mental Capacity Act. It will have special procedures and judges.
2. Public Guardian – This public official will take over from the current Public Guardianship Office. The Public Guardian will be the registering authority for lasting powers of attorney and deputies.

Link to the Act here