The following Private Client guidance note Produced in partnership with Patricia Wass of Enable Law provides comprehensive and up to date legal information covering:
The decision maker must firstly consider the principles as set out in section 1 of the Mental Capacity Act 2005 (MCA 2005), namely:
the vulnerable person (P) must be assumed to have capacity unless it is established that P lacks capacity
P is not to be treated as unable to make a decision unless all practicable steps to help P to do so have been taken without success
P is not to be treated as unable to make a decision merely because P makes an unwise decision
an act done, or decision made, under MCA 2005 for or on behalf of a person who lacks capacity must be done, or made, in their best interests
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 effectively achieved in a way that is less restrictive of P's rights and freedom of action
The first three principles above exist to empower P. Decision makers must take all relevant steps to support P in making their own decisions wherever possible. The principles in MCA 2005, s 1(5) and 1(6), however, are relevant when it has been concluded that a decision should be made on P’s behalf and that this decision should be made in P’s best
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