Legal aspects Naomi Pinder Head of Wills & Probate Department 16 November 2013.

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Presentation transcript:

Legal aspects Naomi Pinder Head of Wills & Probate Department 16 November 2013

The Mental Capacity Act 2005 and Code of Practice Available from the stationery office

Five Principles of the MCA

Assume A person must be assumed to have capacity unless it is established that he lacks capacity. Do not discriminate eg: on grounds of age

Help A person is not to be treated as unable to make the decision in question unless all practicable steps to do so have been taken without success.

Unwise decision A person is not to be treated as unable to make the decision in question merely because he makes an unwise decision.

Best interests An action done or decision made for a person who lacks capacity to make the decision in question must be done or made in his best interests.

Proportionality Before an act is due or decision made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Protection Protection from liability is afforded to medics carrying out care or treatment of a person lacking capacity to consent to the act. 1.Take reasonable steps to ascertain capacity 2.Act in the person’s best interests

Lasting Power of Attorney for Health & Welfare Gives legal authority to a named person or persons to make decisions re. care in case where the person lacks capacity to make the decision. Ensure that you see original document.

Capacity particular A particular decision taken by a particular person at a particular time. ie. decision and time specific.

Court of Protection Cases involving dispute are referred to the Court of Protection.

Keep written records of all decisions and objective reasons for the decision.

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Contact us Naomi Pinder Head of Wills & Probate Department