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20 September 2007 / Catherine Ball
Issue: 7289 / Categories: Features , Wills & Probate , Mental health
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Whose will?

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Fee earners should be trained on the provisions of the Mental Capacity Act 2005, says Catherine Ball

The Mental Capacity Act 2005 (MCA 2005) sets up a legal framework that is designed to ensure that the affairs of those with mental incapacity are dealt with in the least interventionist way possible.

CODE OF PRACTICE

A Code of Practice produced by the government states that it is the duty of a person acting in any of the following roles to have regard to the code when dealing with someone who lacks capacity:- an attorney under an lasting power of attorney (LPA);
- a deputy appointed by the court;
- a person carrying out research in reliance on any provision under MCA 2005;
- an independent mental capacity advocate;
- a person in a professional capacity; or
- a person acting for remuneration.

Any lawyer dealing with someone who may not be able to make their own decisions must be aware of the code and MCA 2005—particularly if instructions are taken primarily from a third party. Departure from the code may be used

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