Mental Capacity

by Ashton, Gordon R.

• ISBN13: 9780853089766
• ISBN10: 0853089760
• Format: Paperback
• Copyright: 2006-05-30
• Publisher: Jordans Pub

Summary

The Mental Capacity Act 2005 constitutes one of the most important pieces of legislation for many years and introduces a major overhaul of the existing law in this area. Key provisions contained in the Act include: - The introduction of new principles governing the assessment of capacity - A best interests checklist for people acting on behalf of others - The creation of lasting powers of attorney - Court powers to appoint deputies to make decisions on behalf of persons lacking capacity - A statutory framework for making advance decisions to refuse medical treatment - New powers for the Court of Protection and the Public Guardian Mental Capacity: The New Law provides an authoritative commentary on both law and procedure, highlighting areas of potential difficulty and offering practical guidance on the challenges that the legislation poses. This book is essential reading for all private client lawyers, chancery practitioners and non-contentious lawyers generally. It includes the text of the Mental Capacity Act 2005 CONTENTS Background The New Jurisdiction Lasting Powers of Attorney Powers of the Court Health Care Independent Consultation The Court of Protection The Public Guardian Appendix - Mental Capacity Act 2005

Table of Contents

Preface	vii
Table of Cases	xiii
Table of Statutes	xix
Table of Statutory Instruments	xxv
Table of European and International Materials	xxvii
List of Abbreviations	xxix
Background	1	(54)
Preliminary	1	(13)
Overview	1	(11)
Current law	12	(2)
The New Climate	14	(20)
The social climate	14	(7)
The legal climate	21	(13)
Law Reform	34	(21)
Origins	34	(1)
The Law Commission	35	(6)
The Government's response	41	(3)
Legislation	44	(8)
Conclusion	52	(3)
The New Jurisdiction	55	(60)
Part 1: Overview	56	(6)
Key elements	56	(1)
The Code(s) of Practice	57	(5)
Part 2: Principles and Concepts	62	(33)
The principles	62	(9)
Defining lack of capacity	71	(8)
The assessment of capacity	79	(8)
Determining best interests	87	(8)
Part 3: General Powers and Duties	95	(20)
Acts in connection with care or treatment -- background	95	(3)
Acts in connection with care or treatment -- the legislation	98	(7)
Paying for goods, services and other expenditure	105	(10)
Lasting Powers of Attorney	115	(44)
Background	115	(9)
Powers of attorney	115	(3)
Statutory powers of attorney	118	(6)
Nature of Lasting Power of Attorney	124	(21)
Character of Lasting Powers of Attorney	124	(1)
Scope of Lasting Powers of Attorney	125	(10)
Form of Lasting Powers of Attorney	135	(10)
Creation of Lasting Power of Attorney	145	(2)
Stages	145	(1)
Status	146	(1)
Registration of Lasting Power of Attorney	147	(10)
The requirement of registration	147	(5)
Objections to registration	152	(5)
Powers of the Court and Public Guardian	157	(1)
Enduring Powers of Attorney	157	(2)
Powers of the Court	159	(22)
Declarations	159	(2)
Making Decisions and Appointing Deputies	161	(8)
Making decisions	161	(3)
Deputies	164	(3)
How will the Court exercise these powers?	167	(2)
Control of Lasting Powers of Attorney	169	(7)
Court's powers to intervene	169	(6)
The role of the Public Guardian	175	(1)
Living With the New Jurisdiction	176	(5)
Healthcare, Advance Directives and Research	181	(36)
Medical Treatment	181	(17)
The common law position	182	(4)
The position under the Mental Capacity Act 2005	186	(8)
Independent mental capacity advocates	194	(4)
The Competent Adult -- Advance Decisions	198	(7)
Advance directives at common law	199	(1)
Advance decisions under the Mental Capacity Act 2005	200	(5)
Medical Research	205	(4)
Common law position	205	(1)
Research authorised by the Mental Capacity Act 2005	206	(3)
Relationship Between the Mental Health and Mental Capacity Acts	209	(8)
The Court of Protection	217	(50)
Background	217	(4)
The Present Court of Protection	221	(15)
Status	221	(1)
Practice and procedure	222	(7)
The regional Court of Protection	229	(5)
An evaluation of the present Court of Protection	234	(2)
The New Court of Protection	236	(31)
Status of the new Court	239	(2)
Practice and procedure	241	(4)
Challenges ahead	245	(22)
The Public Guardian and Supporting Services	267	(36)
Background	267	(12)
The Public Trust Office	268	(4)
The Public Guardianship Office	272	(7)
The Public Guardian	279	(6)
Court of Protection Visitors	285	(10)
Background	285	(9)
The new regime	294	(1)
The Official Solicitor	295	(8)
Miscellaneous	303	(10)
Enduring Powers -- Transitional (Sch 4)	303	(1)
Transitional Provisions (Sch 5)	304	(1)
International Protection of Adults (Sch 3)	305	(5)
Consequential Amendments and Repeals (Schs 6 and 7)	310	(3)
Appendix -- Mental Capacity Act 2005	313	(86)
Index	399