Understanding the Mental Capacity Act 2005

As a parent or carer of someone with Down syndrome, planning for the future is crucial. The Mental Capacity Act 2005 (MCA) provides a legal framework in England and Wales to support individuals who may lack the capacity to make certain decisions. This guide aims to help you understand the MCA and how it applies to your loved one.

What is the Mental Capacity Act 2005?

The MCA is a law that protects and empowers individuals aged 16 and over who may lack the capacity to make specific decisions. It ensures that decisions made on behalf of someone who lacks capacity are done in their best interests.

Key principles of the MCA

The MCA is built on five core principles:

1. Presumption of capacity: Every adult has the right to make their own decisions unless proven otherwise.

2. Support to make decisions: Individuals should be given all practicable help before anyone concludes they cannot make their own decisions.

3. Right to make unwise decisions: Making an unwise decision does not mean a person lacks capacity.

4. Best interests: Any decision made on behalf of someone who lacks capacity must be in their best interests.

5. Least restrictive option: Any decision should aim to restrict the person’s rights and freedom as little as possible.

Assessing capacity

Capacity is decision-specific and time-specific. This means a person may have the capacity to make some decisions but not others, and their capacity can fluctuate over time.

To assess capacity, consider if the person can:

• Understand the information relevant to the decision.

• Retain that information.

• Use or weigh that information as part of the decision-making process.

• Communicate their decision.

If they cannot do any of these, they may lack capacity for that specific decision.

Supporting decision-making

The MCA emphasises supporting individuals to make their own decisions wherever possible. This support can include:

• Providing information in an accessible format.

• Allowing extra time for decision-making.

• Involving advocates or support persons.

For individuals with Down syndrome, using easy-read materials or visual aids can be particularly helpful.

Best interests decision-making

When someone lacks capacity, any decision made on their behalf must be in their best interests. Factors to consider include:

• The person’s past and present wishes and feelings.

• The beliefs and values that would influence their decision.

• The views of family members, carers, or anyone else interested in the person’s welfare.

It’s essential to involve the person as much as possible in the decision-making process.

Planning ahead: lasting powers of attorney

If your loved one has the capacity, they can appoint someone they trust to make decisions on their behalf in the future through a Lasting Power of Attorney (LPA). There are two types:

• Property and financial affairs LPA: covers decisions about money and property.

• Health and welfare LPA: covers decisions about health and personal welfare.

Setting up an LPA ensures that decisions are made by someone who knows and respects the individual’s wishes.

When LPAs aren’t in place: deputyship

If your loved one lacks capacity and hasn’t set up an LPA, you may need to apply to the Court of Protection to become their deputy. As a deputy, you’ll have the legal authority to make decisions on their behalf. This process can be more time-consuming and costly than setting up an LPA, so it’s advisable to plan ahead.

Resources and support

Several organisations offer guidance on the MCA:

• Mencap: Provides easy-read guides and resources for individuals with learning disabilities.

• Mind: Offers information on legal rights and the MCA.

Consulting with a solicitor experienced in mental capacity law can also be beneficial.

Conclusion

Understanding and applying the Mental Capacity Act 2005 is vital for families of individuals with Down syndrome. It ensures that your loved one’s rights are protected and that any decisions made on their behalf are in their best interests. By planning ahead and seeking appropriate support, you can navigate these decisions with confidence and care.