The Mental Capacity Act 2005 (MCA) covers people in England and Wales who lack the mental capacity to make their own decisions about their care and treatment. The Mental Capacity Act’s five principles give guidance to the Attorney or any other relevant third party about how a vulnerable person should be treated.

The MCA covers different types of decisions, some simple ones about day-to-day things such as what to wear or what to buy for the weekly shop, and some more serious life-changing decisions such as whether to move into a care home or have major surgery.

Mental Capacity Act – five key principles

There are five principles under the Mental Capacity Act 2005 that must be adhered to:

  1. A person must be assumed to have capacity unless it is established that they lack capacity
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success
  3. A person is not to be treated as unable to make a decision merely because they make an unwise decision
  4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests
  5. Before the act is done, or the decision is 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

Best interests

The principle is that you MUST make decisions in the best interests of the Donor. If the Donor lacks capacity, however, they cannot make decisions but, the POA can still take account of their opinion.

Those people who work with or care for people who lack capacity have a legal duty under the MCA to consider the Code of Practice. It tells you what you must do when you make decisions or act for other people who lack capacity.


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