The Act also has a code or practice for Deputies and attorneys. Failure to follow it can be used as evidence against that person. The aim of the Code is to help those involved with incapacitated adults to better carry out their role. They must always be assessing whether an action they are about to take or a decision they are to make is in the client’s best interest.
The 2005 Act makes it clear that capacity is to be considered on a decision by decision basis. It recognises that each case is individual and that some people may have fluctuating capacity. We advise that constant consideration of the mental capacity of each person we act for in relation to the decision being made, and if necessary instruct a medical practitioner to carry out a formal assessment. This must be considered for those who may be recovering form illness or injury where they may ‘regain’ capacity at some point.
The Mental Capacity Act, and the more recent Deprivation of Liberty Safeguards are still very new law and this area of practice is developing rapidly with new cases being reported which effect