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The Mental Capacity Act 2005

The Mental Capacity Act is there to protect you. Making a lasting power of attorney is the best way of ensuring that someone you trust can make decisions on your behalf. It eases the burden on your family should you lose mental capacity. They are recognised by financial institutions, care homes and local authorities, as well as tax, benefits and pension authorities.

The Mental Capacity Act 2005 has five statutory principles that guide your attorneys and those people that can help you make decisions.

1. Capacity is Assumed

When a decision has to be made you are assumed to have capacity, so it is for someone else to provide evidence that more likely than not, you lack the mental capacity to make that decision.

2. Help Making a Decision

You are not to be treated as being unable to make a decision, unless all practicable steps to help you have been made without success. People should help to ensure that you understand the information being given to you and the decision that needs to be made.

3. Unwise Decisions

You must not be treated as unable to make decision, just because your family, friends or health professionals think that you’ve made an unwise decision or they disagree with it.

4. Best Interests

Any decision made or act done, must be in your best interests. This particular principal is crucial in ensuring that your attorneys cannot act in self-interest. Clients often ask, "but couldn't my attorney..."? No, not if it's not in your best interests.

5. Least Restrictve Option

Before any decision is made, care must be taken to avoid restricting your rights or freedom of action. They should always choose the decision that impacts on your basic rights and freedoms the least.

If you don’t make a lasting power of attorney and then lose mental capacity, your loved ones will face long delays and expense in applying to the Court of Protection to take control of your assets and finances. I would really urge you to look at putting an LPA in place. If you are making a Will with me, I’ll happily give you some advice if you want to fill in the forms yourself or otherwise I can take care of the whole process of making and registering a lasting power of attorney.

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