Draft Mental Incapacity Bill published

The government has announced plans to extend the power of people
who make decisions on behalf of those who lack capacity,
writes Katie Leason.

The draft Mental Incapacity Bill, published last week,
introduces new decision-making processes that would allow others to
make welfare and healthcare decisions in addition to financial
decisions on behalf of people deemed unable to make decisions of
their own.

According to the definition set out in the bill, a person lacks
capacity if they are unable to make a decision about something
“because of an impairment of or a disturbance in the
functioning of the mind or brain”.

The bill proposes a new system of Lasting Powers of Attorney
which would allow people to appoint an attorney to act on their
behalf in case they lose capacity in the future. Deputies could be
appointed by the court where an LPA has not been appointed.

With regard to informal decision making, the bill sets out a
“general authority” which makes it lawful for a person
to act on behalf of someone lacking capacity where it is reasonable
and in an individual’s best interests.

A dedicated Court of Protection would have authority over all
areas of decision making for adults who lack capacity, and a new
criminal offence is proposed for the ill-treatment or wilful
neglect of a person who lacks capacity by an attorney, deputy or

Voluntary sector coalition group the Making Decisions Alliance
welcomed the bill as “good news”, and pledged to work
to ensure that the final bill gets the right balance between
protecting people who have difficulty making decisions and
empowering those who can to make as many decisions as

But co-chairperson of the National Forum of People with Learning
Difficulties Joan Scott said that forum members were concerned that
the draft bill ignored the fact that most people with learning
difficulties were capable of making decision with support and that
it would give parents and carers increased authority to make
decisions on their behalf.

Pointing out that people with learning difficulties who were
considered to lack capacity from birth would never be in a position
to appoint their own attorney, Scott said: “We think it would be
better if you had outside people who could act as an advocate to
make sure people with learning difficulties had their


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