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Insight > Court of protection FAQS > What is the Mental Capacity Act 2005?
What is the Mental Capacity Act 2005?
The Mental Capacity Act 2005 is the legislation that underpins the work of the Court of Protection and the law on capacity. It is designed to protect vulnerable people who are unable to make decisions for themselves.
It sets out five basic principles which govern how to approach questions of capacity and managing the affairs of those who lack capacity:
(a) A person must be assumed to have capacity unless it is established that they lack capacity.
(b) A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
(c) A person is not to be treated as unable to make a decision merely because they make an unwise decision.
(d) An act done or decision made for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
(e) Before the act is done, or the decision is made, consideration must be given to whether the same result can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
Among other provisions, the Act establishes the Court of Protection, sets out the powers and duties of attorneys (acting under a Lasting Power of Attorney) and deputies, and establishes certain rules regarding when an individual can be deprived of their liberty.
The Mental Capacity Act Code of Practice gives guidance for decisions under the Act.
In these FAQs and answers, we use 'England' as a shorthand for 'England and Wales' because England and Wales share a single legal system. Scotland, meanwhile, is a different legal system and has different rules for many aspects of court of protection law.
These FAQs (and our website more generally) contain general information based on English law as it stands at the date of publication, but they do not constitute legal advice. Whilst we endeavour to ensure it is accurate and up to date, website users should seek appropriate legal advice before taking or refraining from any action based on the content of the website. We would, of course, be willing to assist with this, and you can contact us here.
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