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Mental Capacity and Family Practitioners

Date:1 MAR 2007

District Judge Gordon Ashton, Deputy Master of the Court of Protection, Visiting Professor in Law at Northumbria University. The Mental Capacity Act 2005 establishes a comprehensive statutory framework setting out how decisions should be made by, and on behalf of, those whose capacity to make their own decisions is in doubt. The implementation date has now been put back from April to October 2007 in view of the work still to be done. A Code of Practice and Court Rules have to be produced, administrative changes made in regard to the new Office of the Public Guardian and Court of Protection, and suitable judges nominated and trained. The Code of Practice will provide practical guidance to all involved in the process and must be followed by attorneys, deputies and care professionals. It will be updated as experience is gained and to reflect decisions of the Court of Protection.

The new Act is built around a series of key principles: the presumption of capacity; when someone can be said to lack capacity; and that decisions should be made by or in the best interests of that person and with due regard for their rights and freedom of action. The Act sets out the mechanics of the new jurisdiction and establishes a new statutory form of power of attorney, the lasting power of attorney, which will replace enduring powers of attorney and may relate to personal welfare decisions as well as financial management. Other areas covered include general powers of the Court of Protection, living wills and certain decisions which the Act does not permit to be made on behalf of persons who lack capacity. For a detailed commentary on the new Act and the modernised Court of Protection and a useful contemplation of how it might affect practitioners by way of some envisaged case studies see the full article in March [2007] Fam Law.