Mental incapacity proposals set to create new powers of attorney

The government has announced plans to extend the power of those who
make decisions on behalf of people with mental incapacity.

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

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 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 attorney 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 with mental incapacity where it is in an
individual’s best interests.

A dedicated court of protection would have authority over all areas
of decision-making for adults with mental incapacity, and a
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 possible.

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 decisions 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: “It would be better if
you had outside people who could act as an advocate to make sure
people with learning difficulties had their say.”

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