The Act provides a statutory framework for people who lack capacity to make decisions for themselves or who have capacity now and want to make preparations for a time when they may lack capacity in the future.

Everyone working with or caring for an adult who may lack capacity to make specific decisions has to comply with the Act. The Act’s intention is to ensure that any decision made, or action taken on behalf of someone who lacks capacity to make decisions or act for themselves, is made in their best interest.

The Act also discourages anyone involved in caring for someone who lacks capacity from being overly restrictive or controlling. It aims to balance an individual’s right to make decisions for themselves with the right to be protected from harm if they lack capacity to make decisions to protect themselves.

The Act sets out provisions whereby people can plan ahead for a time when they may lack capacity:

• Lasting Powers of Attorney (LPA)

The Act allows a person to appoint an attorney to act on their behalf if they should lose capacity in the future. The attorney can make decisions in relation to finances, property, health and welfare.

• Advanced Decisions to Refuse Treatment

The Act makes it possible to make an advanced decision to refuse treatment if the person should lack capacity in the future.

The Act creates important safeguards which are:

• A New Court of Protection

This will have the power to make declarations about whether someone lacks capacity, and can make orders or appoint deputies to act and make decisions on behalf of someone who lacks capacity. It will make decisions where family carers and professionals are in dispute about what is in the best interests of the patient.

• A New Public Guardian

The Act creates a new public official called The Public Guardian. They will have several duties including registering LPAs and Deputies.

• Independent Mental Capacity Advocates (IMCA)

An IMCA is someone appointed to support a person who lacks capacity but has no-one to speak for them such as family or friends. They will only become involved when decisions need to be made about serious medical treatment or a change in the person’s accommodation where it is provided by the NHS or local authority.

• A New Criminal Offence

The Act introduces two new criminal offences of ill treatment and wilful neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for up to five years.

A new provision to the Mental Capacity Act will be added in April 2009.

The Deprivation of Liberty Safeguards

The safeguards focus on some of the most vulnerable people who, for their own safety and in their own best interests, need to be accommodated under care and treatment regimes that may have the effect of ‘depriving them of their liberty’ but who lack the capacity to consent to this. The safeguards have been created to ensure that any decision to deprive someone of their liberty is made following defined processes.

Further information and publications about the Mental Capacity Act 2005 can be found on the Mind and Department of Health websites.