Rebecca Roscoe, TEP

This Practice Note explains that the Mental Capacity Act 2005 (MCA 2005) creates a presumption of capacity, in the absence of proof to the contrary, for adults to make informed decisions. It sets out the principles that govern the determination of capacity and a person’s ability to rationalise a decision under MCA 2005, and discusses the Code of Practice for those working with or caring for those lacking capacity. It covers the MCA 2005 definition of the best interests of a person who lacks capacity, and the protection available for those responsible for the care of those who lack capacity. It explains that capacity to make decisions are both time and decision specific and the factors to consider when determining capacity to decide where to live and what care to receive.

This Practice Note discusses circumstances where a local authority may become involved with land and property which is owned by someone who lacks the mental capacity to manage or make decisions concerning that land. It contains a general overview of capacity and a summary of the practicalities when dealing with land, both in sole and joint ownership. It also provides an overview of the position where property is required to fund an individual’s care and also where local authorities may need to enforce obligations upon an owner where property has fallen into disrepair.

This Practice Note is primarily concerned with providing guidance to local authorities in relation to lasting powers of attorney for property and financial affairs and other issues arising from dealing with incapacitated individuals that come to their attention.