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Advocates for people who lack mental capacity will be able to receive direct benefit payments on their behalf under new legislation proposed last week.

Existing rules only allow direct payments to be made to people who are considered to be mentally capable of consenting to use them. The Health and Social Care Bill, published last week, would make it possible for a “suitable person” to receive payments in order to arrange appropriate social care for someone who cannot consent.

The move, promised in last year's health and social care white paper, is designed to increase people's independence by giving those most concerned with their welfare control over the way their services are delivered. For instance, it would allow parents to continue to receive direct payments on behalf of children with severe learning disabilities once they reach 18.

The Mental Capacity Act 2005, most of which came into law last month this year, paved the way for this extension of direct payments by defining the “capacity to consent". It also allowed for people to give loved-ones lasting powers of attorney, which would involve making decisions about their care and welfare should they lose capacity. Under the act, the Court of Protection can appoint deputies to perform the same role for people who already lack capacity.

Under the plans, a "suitable person" would either be the deputy or lasting power of attorney appointee, or, if not, would be chosen with their consent.

The Health and Social Care Bill would also  merge Commission for Social Care Commission, Mental Health Act Commission and Healthcare Commission into a new Care Quality Commission.

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More information

Mental Capacity Act 2005