The Mental Capacity Act 2005 (MCA): The Second Key Principle – The right to be supported when making decisions

The MCA categorises the people who should be guided by the statutory framework and identifies certain categories who are ‘legally required’ to have regard to the Code of Practice. What does this mean in practice? There are professionals who will be required to act in accordance with the Act, such as social workers and mental capacity advocates, but in this article, we are interested in the position of the Attorney appointed under a Lasting Power of Attorney (LPA) or a deputy appointed by the Court of Protection, both either as Lay or Professional.

While I have capacity, I have the option to appoint a trusted person to act as my Attorney through a Lasting Power of Attorney, in this example, to look after my property and finance, and I can dictate the point at which I want them to act. For instance, I might know that I have early stages of Alzheimer’s Disease. I have a clinical diagnosis and would like my Attorney to take over my finances when I am unable to do so. I am able to state this in the LPA. Alternatively, an LPA for Property and Financial Affairs can be used as soon as it has been registered. (By contrast, an LPA for Health and Welfare can only be used when the donor no longer has capacity to make their own decisions).

While my condition deteriorates, my understanding is variable; I have good days and bad days. The second key principle ensures that anyone assessing my capacity understands that I am good in the morning after breakfast, but do not function well at 10pm. I like people to speak slowly and clearly to help me to understand and I like to be given time to process information.

Only when all necessary steps have been taken to assist my understanding, without success, would the Attorney make a decision on my behalf, but it must always be in my best interest, a concept that I will return to in blog 4 of the series.

Property and affairs deputies are appointed by the Court of Protection only after someone has been assessed as having lost the capacity to manage their property and affairs (making reference to principle 1 of the MCA). Given that the person is is unable to appoint an Attorney, the Court of Protection’s key consideration will be to consider whether there is a ‘less restrictive’ way of managing the persons property and affairs. This is the fifth key principle of the MCA, which will be covered in blog 5. In nearly all cases, there is no alternative as anyone wanting to access to money in a person’s bank or building society will need formal legal authority.

Personal welfare applications are rarely granted as the Court will consider whether the order restricts the options available to the person.

The second key principle encourages us to make decisions on behalf of someone else from a position of knowledge, experience and understanding; we approach each decision with a view to the Five Principles of the MCA.

Roswyn Bradshaw is an Associate and Court of Protection & Caseworker Manager in the private client team at Barker Gotelee Solicitors in Suffolk. 

For more information on our range of legal services please call the team on 01473 611211 or fill out our enquiry form.