Mental Capacity Act 2005

1. Introductory Text

2. Part 1 Persons who lack capacity

   1. The principles

      1. 1. The principles

   2. Preliminary

      1. 2. People who lack capacity

      2. 3. Inability to make decisions

      3. 4. Best interests

      4. 5. Acts in connection with care or treatment

      5. 6. Section 5 acts: limitations

      6. 7. Payment for necessary goods and services

      7. 8. Expenditure

   3. Lasting powers of attorney

      1. 9. Lasting powers of attorney

      2. 10. Appointment of donees

      3. 11. Lasting powers of attorney: restrictions

      4. 12. Scope of lasting powers of attorney: gifts

      5. 13. Revocation of lasting powers of attorney etc.

      6. 14. Protection of donee and others if no power created or power revoked

   4. General powers of the court and appointment of deputies

      1. 15. Power to make declarations

      2. 16. Powers to make decisions and appoint deputies: general

      3. 17. Section 16 powers: personal welfare

      4. 18. Section 16 powers: property and affairs

      5. 19. Appointment of deputies

      6. 20. Restrictions on deputies

      7. 21. Transfer of proceedings relating to people under 18

   5. Powers of the court in relation to lasting powers of attorney

      1. 22. Powers of court in relation to validity of lasting powers of attorney

      2. 23. Powers of court in relation to operation of lasting powers of attorney

   6. Advance decisions to refuse treatment

      1. 24. Advance decisions to refuse treatment: general

      2. 25. Validity and applicability of advance decisions

      3. 26. Effect of advance decisions

   7. Excluded decisions

      1. 27. Family relationships etc.

      2. 28. Mental Health Act matters

      3. 29. Voting rights

   8. Research

      1. 30. Research

      2. 31. Requirements for approval

      3. 32. Consulting carers etc.

      4. 33. Additional safeguards

      5. 34. Loss of capacity during research project

   9. Independent mental capacity advocate service

      1. 35. Appointment of independent mental capacity advocates

      2. 36. Functions of independent mental capacity advocates

      3. 37. Provision of serious medical treatment by NHS body

      4. 38. Provision of accommodation by NHS body

      5. 39. Provision of accommodation by local authority

      6. 40. Exceptions

      7. 41. Power to adjust role of independent mental capacity advocate

   10. Miscellaneous and supplementary

       1. 42. Codes of practice

       2. 43. Codes of practice: procedure

       3. 44. Ill-treatment or neglect

3. Part 2 The Court of Protection and the Public Guardian

   1. The Court of Protection

      1. 45. The Court of Protection

      2. 46. The judges of the Court of Protection

   2. Supplementary powers

      1. 47. General powers and effect of orders etc.

      2. 48. Interim orders and directions

      3. 49. Power to call for reports

   3. Practice and procedure

      1. 50. Applications to the Court of Protection

      2. 51. Court of Protection Rules

      3. 52. Practice directions

      4. 53. Rights of appeal

   4. Fees and costs

      1. 54. Fees

      2. 55. Costs

      3. 56. Fees and costs: supplementary

   5. The Public Guardian

      1. 57. The Public Guardian

      2. 58. Functions of the Public Guardian

      3. 59. Public Guardian Board

      4. 60. Annual report

   6. Court of Protection Visitors

      1. 61. Court of Protection Visitors

4. Part 3 Miscellaneous and general

   1. Declaratory provision

      1. 62. Scope of the Act

   2. Private international law

      1. 63. International protection of adults

   3. General

      1. 64. Interpretation

      2. 65. Rules, regulations and orders

      3. 66. Existing receivers and enduring powers of attorney etc.

      4. 67. Minor and consequential amendments and repeals

      5. 68. Commencement and extent

      6. 69. Short title

5. SCHEDULES

   1. SCHEDULE 1

      Lasting powers of attorney: formalities

      1. Part 1 Making instruments

         1. General requirements as to making instruments

            1. 1. (1) An instrument is not made in accordance with this...

         2. Requirements as to content of instruments

            1. 2. (1) The instrument must include— (a) the prescribed information about...

         3. Failure to comply with prescribed form

            1. 3. (1) If an instrument differs in an immaterial respect in...

      2. Part 2 Registration

         1. Applications and procedure for registration

            1. 4. (1) An application to the Public Guardian for the registration...

            2. 5. Subject to paragraphs 11 to 14, the Public Guardian must...

         2. Notification requirements

            1. 6. (1) A donor about to make an application under paragraph...

            2. 7. As soon as is practicable after receiving an application by...

            3. 8. (1) As soon as is practicable after receiving an application...

            4. 9. (1) A notice under paragraph 6 must be made in...

         3. Power to dispense with notification requirements

            1. 10. The court may— (a) on the application of the donor,...

         4. Instrument not made properly or containing ineffective provision

            1. 11. (1) If it appears to the Public Guardian that an...

         5. Deputy already appointed

            1. 12. (1) Sub-paragraph (2) applies if it appears to the Public...

         6. Objection by donee or named person

            1. 13. (1) Sub-paragraph (2) applies if a donee or a named...

         7. Objection by donor

            1. 14. (1) This paragraph applies if the donor—

         8. Notification of registration

            1. 15. Where an instrument is registered under this Schedule, the Public...

         9. Evidence of registration

            1. 16. (1) A document purporting to be an office copy of...

      3. Part 3 Cancellation of registration and notification of severance

         1. 17. (1) The Public Guardian must cancel the registration of an...

         2. 18. The court must direct the Public Guardian to cancel the...

         3. 19. (1) Sub-paragraph (2) applies if the court determines under section...

         4. 20. On the cancellation of the registration of an instrument, the...

      4. Part 4 Records of alterations in registered powers

         1. Partial revocation or suspension of power as a result of bankruptcy

            1. 21. If in the case of a registered instrument it appears...

         2. Termination of appointment of donee which does not revoke power

            1. 22. If in the case of a registered instrument it appears...

         3. Replacement of donee

            1. 23. If in the case of a registered instrument it appears...

         4. Severance of ineffective provisions

            1. 24. If in the case of a registered instrument the court...

         5. Notification of alterations

            1. 25. If the Public Guardian attaches a note to an instrument...

   2. SCHEDULE 2

      Property and affairs: supplementary provisions

      1. Wills: general

         1. 1. Paragraphs 2 to 4 apply in relation to the execution...

      2. Provision that may be made in will

         1. 2. The will may make any provision (whether by disposing of...

      3. Wills: requirements relating to execution

         1. 3. (1) Sub-paragraph (2) applies if under section 16 the court...

      4. Wills: effect of execution

         1. 4. (1) This paragraph applies where a will is executed in...

      5. Vesting orders ancillary to settlement etc.

         1. 5. (1) If provision is made by virtue of section 18...

      6. Variation of settlements

         1. 6. (1) If a settlement has been made by virtue of...

      7. Vesting of stock in curator appointed outside England and Wales

         1. 7. (1) Sub-paragraph (2) applies if the court is satisfied—

      8. Preservation of interests in property disposed of on behalf of person lacking capacity

         1. 8. (1) Sub-paragraphs (2) and (3) apply if—

         2. 9. (1) Sub-paragraph (2) applies if the court has ordered or...

      9. Powers as patron of benefice

         1. 10. (1) Any functions which P has as patron of a...

   3. SCHEDULE 3

      International protection of adults

      1. Part 1 Preliminary

         1. Introduction

            1. 1. This Part applies for the purposes of this Schedule.

         2. The Convention

            1. 2. (1) “Convention” means the Convention referred to in section 63....

         3. Countries, territories and nationals

            1. 3. (1) “Country” includes a territory which has its own system...

         4. Adults with incapacity

            1. 4. “Adult” means a person who— (a) as a result of...

         5. Protective measures

            1. 5. (1) “Protective measure” means a measure directed to the protection...

         6. Central Authority

            1. 6. (1) Any function under the Convention of a Central Authority...

      2. Part 2 Jurisdiction of competent authority

         1. Scope of jurisdiction

            1. 7. (1) The court may exercise its functions under this Act...

            2. 8. (1) The court may also exercise its functions under this...

         2. Exercise of jurisdiction

            1. 9. (1) This paragraph applies where jurisdiction is exercisable under this...

            2. 10. A reference in this Schedule to the exercise of jurisdiction...

      3. Part 3 Applicable law

         1. Applicable law

            1. 11. In exercising jurisdiction under this Schedule, the court may, if...

            2. 12. Where a protective measure is taken in one country but...

         2. Lasting powers of attorney, etc.

            1. 13. (1) If the donor of a lasting power is habitually...

            2. 14. (1) Where a lasting power is not exercised in a...

            3. 15. Regulations may provide for Schedule 1 (lasting powers of attorney:...

         3. Protection of third parties

            1. 16. (1) This paragraph applies where a person (a “representative”) in...

         4. Mandatory rules

            1. 17. Where the court is entitled to exercise jurisdiction under this...

         5. Public policy

            1. 18. Nothing in this Part of this Schedule requires or enables...

      4. Part 4 Recognition and enforcement

         1. Recognition

            1. 19. (1) A protective measure taken in relation to an adult...

            2. 20. (1) An interested person may apply to the court for...

            3. 21. For the purposes of paragraphs 19 and 20, any finding...

         2. Enforcement

            1. 22. (1) An interested person may apply to the court for...

         3. Measures taken in relation to those aged under 16

            1. 23. (1) This paragraph applies where— (a) provision giving effect to,...

         4. Supplementary

            1. 24. The court may not review the merits of a measure...

            2. 25. Court of Protection Rules may make provision about an application...

      5. Part 5 Co-operation

         1. Proposal for cross-border placement

            1. 26. (1) This paragraph applies where a public authority proposes to...

            2. 27. A proposal received by a public authority under Article 33...

         2. Adult in danger etc.

            1. 28. (1) This paragraph applies if a public authority is told...

            2. 29. A public authority may not request from, or send to,...

      6. Part 6 General

         1. Certificates

            1. 30. A certificate given under Article 38 by an authority in...

         2. Powers to make further provision as to private international law

            1. 31. Her Majesty may by Order in Council confer on the...

            2. 32. (1) Regulations may make provision— (a) giving further effect to...

         3. Exceptions

            1. 33. Nothing in this Schedule applies, and no provision made under...

         4. Regulations and orders

            1. 34. A reference in this Schedule to regulations or an order...

         5. Commencement

            1. 35. The following provisions of this Schedule have effect only if...

   4. SCHEDULE 4

      Provisions applying to existing enduring powers of attorney

      1. Part 1 Enduring powers of attorney

         1. Enduring power of attorney to survive mental incapacity of donor

            1. 1. (1) Where an individual has created a power of attorney...

         2. Characteristics of an enduring power of attorney

            1. 2. (1) Subject to sub-paragraphs (5) and (6) and paragraph 20,...

         3. Scope of authority etc. of attorney under enduring power

            1. 3. (1) If the instrument which creates an enduring power of...

      2. Part 2 Action on actual or impending incapacity of donor

         1. Duties of attorney in event of actual or impending incapacity of donor

            1. 4. (1) Sub-paragraphs (2) to (6) apply if the attorney under...

      3. Part 3 Notification prior to registration

         1. Duty to give notice to relatives

            1. 5. Subject to paragraph 7, before making an application for registration...

            2. 6. (1) Subject to sub-paragraphs (2) to (4), persons of the...

            3. 7. (1) An attorney is not required to give notice under...

         2. Duty to give notice to donor

            1. 8. (1) Subject to sub-paragraph (2), before making an application for...

         3. Contents of notices

            1. 9. A notice to relatives under this Part of this Schedule...

            2. 10. A notice to the donor under this Part of this...

         4. Duty to give notice to other attorneys

            1. 11. (1) Subject to sub-paragraph (2), before making an application for...

         5. Supplementary

            1. 12. Despite section 7 of the Interpretation Act 1978 (c. 30)...

      4. Part 4 Registration

         1. Registration of instrument creating power

            1. 13. (1) If an application is made in accordance with paragraph...

         2. Register of enduring powers

            1. 14. The Public Guardian has the function of establishing and maintaining...

      5. Part 5 Legal position after registration

         1. Effect and proof of registration

            1. 15. (1) The effect of the registration of an instrument under...

         2. Functions of court with regard to registered power

            1. 16. (1) Where an instrument has been registered under paragraph 13,...

         3. Cancellation of registration by Public Guardian

            1. 17. The Public Guardian must cancel the registration of an instrument...

      6. Part 6 Protection of attorney and third parties

         1. Protection of attorney and third persons where power is invalid or revoked

            1. 18. (1) Sub-paragraphs (2) and (3) apply where an instrument which...

         2. Further protection of attorney and third persons

            1. 19. (1) If— (a) an instrument framed in a form prescribed...

      7. Part 7 Joint and joint and several attorneys

         1. Application to joint and joint and several attorneys

            1. 20. (1) An instrument which appoints more than one person to...

         2. Joint attorneys

            1. 21. (1) In paragraph 2(5), the reference to the time when...

         3. Joint and several attorneys

            1. 22. (1) In paragraph 2(7), the reference to the bankruptcy of...

      8. Part 8 Interpretation

         1. 23. (1) In this Schedule— “enduring power” is to be construed...

   5. SCHEDULE 5

      Transitional provisions and savings

      1. Part 1 Repeal of Part 7 of the Mental Health Act 1983

         1. Existing receivers

            1. 1. (1) This paragraph applies where, immediately before the commencement day,...

         2. Orders, appointments etc.

            1. 2. (1) Any order or appointment made, direction or authority given...

         3. Pending proceedings

            1. 3. (1) Any application for the exercise of a power under...

         4. Appeals

            1. 4. (1) Part 7 of the Mental Health Act and the...

         5. Fees

            1. 5. All fees and other payments which, having become due, have...

         6. Court records

            1. 6. (1) The records of the former Court of Protection are...

         7. Existing charges

            1. 7. This Act does not affect the operation in relation to...

         8. Preservation of interests on disposal of property

            1. 8. Paragraph 8(1) of Schedule 2 applies in relation to any...

         9. Accounts

            1. 9. Court of Protection Rules may provide that, in a case...

         10. Interpretation

             1. 10. In this Part of this Schedule— (a) “the commencement day”...

      2. Part 2 Repeal of the Enduring Powers of Attorney Act 1985

         1. Orders, determinations, etc.

            1. 11. (1) Any order or determination made, or other thing done,...

         2. Pending proceedings

            1. 12. (1) An application for the exercise of a power under...

         3. Appeals

            1. 13. (1) The 1985 Act and, so far as relevant, the...

         4. Exercise of powers of donor as trustee

            1. 14. (1) Section 2(8) of the 1985 Act (which prevents a...

         5. Interpretation

            1. 15. In this Part of this Schedule, “the commencement day” means...

   6. SCHEDULE 6

      Minor and consequential amendments

      1. Fines and Recoveries Act 1833 (c. 74)

         1. 1. (1) The Fines and Recoveries Act 1833 (c. 74) is...

      2. Improvement of Land Act 1864 (c. 114)

         1. 2. In section 68 of the Improvement of Land Act 1864...

      3. Trustee Act 1925 (c. 19)

         1. 3. (1) The Trustee Act 1925 (c. 19) is amended as...

      4. Law of Property Act 1925 (c. 20)

         1. 4. (1) The Law of Property Act 1925 (c. 20) is...

      5. Administration of Estates Act 1925 (c. 23)

         1. 5. (1) The Administration of Estates Act 1925 (c. 23) is...

      6. National Assistance Act 1948 (c. 29)

         1. 6. In section 49 of the National Assistance Act 1948 (c....

      7. U.S.A. Veterans' Pensions (Administration) Act 1949 (c. 45)

         1. 7. In section 1 of the U.S.A. Veterans' Pensions (Administration) Act...

      8. Intestates' Estates Act 1952 (c. 64)

         1. 8. In Schedule 2 to the Intestates' Estates Act 1952 (c....

      9. Variation of Trusts Act 1958 (c. 53)

         1. 9. In section 1 of the Variation of Trusts Act 1958...

      10. Administration of Justice Act 1960 (c. 65)

          1. 10. In section 12(1)(b) of the Administration of Justice Act 1960...

      11. Industrial and Provident Societies Act 1965 (c. 12)

          1. 11. In section 26 of the Industrial and Provident Societies Act...

      12. Compulsory Purchase Act 1965 (c. 56)

          1. 12. In Schedule 1 to the Compulsory Purchase Act 1965 (c....

      13. Leasehold Reform Act 1967 (c. 88)

          1. 13. (1) For section 26(2) of the Leasehold Reform Act 1967...

      14. Medicines Act 1968 (c. 67)

          1. 14. In section 72 of the Medicines Act 1968 (c. 67)...

      15. Family Law Reform Act 1969 (c. 46)

          1. 15. For section 21(4) of the Family Law Reform Act 1969...

      16. Local Authority Social Services Act 1970 (c. 42)

          1. 16. (1) Schedule 1 to the Local Authority Social Services Act...

      17. Courts Act 1971 (c. 23)

          1. 17. In Part 1A of Schedule 2 to the Courts Act...

      18. Local Government Act 1972 (c. 70)

          1. 18. (1) Omit section 118 of the Local Government Act 1972...

      19. Matrimonial Causes Act 1973 (c. 18)

          1. 19. In section 40 of the Matrimonial Causes Act 1973 (c....

      20. Juries Act 1974 (c. 23)

          1. 20. In Schedule 1 to the Juries Act 1974 (c. 23)...

      21. Consumer Credit Act 1974 (c. 39)

          1. 21. For section 37(1)(c) of the Consumer Credit Act 1974 (c....

      22. Solicitors Act 1974 (c. 47)

          1. 22. (1) The Solicitors Act 1974 (c. 47) is amended as...

      23. Local Government (Miscellaneous Provisions) Act 1976 (c. 57)

          1. 23. In section 31 of the Local Government (Miscellaneous Provisions) Act...

      24. Sale of Goods Act 1979 (c. 54)

          1. 24. In section 3(2) of the Sale of Goods Act 1979...

      25. Limitation Act 1980 (c. 58)

          1. 25. In section 38 of the Limitation Act 1980 (c. 58)...

      26. Public Passenger Vehicles Act 1981 (c. 14)

          1. 26. In section 57(2)(c) of the Public Passenger Vehicles Act 1981...

      27. Judicial Pensions Act 1981 (c. 20)

          1. 27. In Schedule 1 to the Judicial Pensions Act 1981 (c....

      28. Supreme Court Act 1981 (c. 54)

          1. 28. In Schedule 2 to the Supreme Court Act 1981 (c....

      29. Mental Health Act 1983 (c. 20)

          1. 29. (1) The Mental Health Act is amended as follows.

      30. Administration of Justice Act 1985 (c. 61)

          1. 30. In section 18(3) of the Administration of Justice Act 1985...

      31. Insolvency Act 1986 (c. 45)

          1. 31. (1) The Insolvency Act 1986 (c. 45) is amended as...

      32. Building Societies Act 1986 (c. 53)

          1. 32. In section 102D(9) of the Building Societies Act 1986 (c....

      33. Public Trustee and Administration of Funds Act 1986 (c. 57)

          1. 33. In section 3 of the Public Trustee and Administration of...

      34. Patronage (Benefices) Measure 1986 (No.3)

          1. 34. (1) The Patronage (Benefices) Measure 1986 (No. 3) is amended...

      35. Courts and Legal Services Act 1990 (c. 41)

          1. 35. (1) The Courts and Legal Services Act 1990 (c. 41)...

      36. Child Support Act 1991 (c. 48)

          1. 36. In section 50 of the Child Support Act 1991 (c....

      37. Social Security Administration Act 1992 (c. 5)

          1. 37. In section 123 of the Social Security Administration Act 1992...

      38. Judicial Pensions and Retirement Act 1993 (c. 8)

          1. 38. (1) The Judicial Pensions and Retirement Act 1993 (c. 8)...

      39. Leasehold Reform, Housing and Urban Development Act 1993 (c. 28)

          1. 39. (1) For paragraph 4 of Schedule 2 to the Leasehold...

      40. Goods Vehicles (Licensing of Operators) Act 1995 (c. 23)

          1. 40. (1) The Goods Vehicles (Licensing of Operators) Act 1995 (c....

      41. Disability Discrimination Act 1995 (c. 50)

          1. 41. In section 20(7) of the Disability Discrimination Act 1995 (c....

      42. Trusts of Land and Appointment of Trustees Act 1996 (c. 47)

          1. 42. (1) The Trusts of Land and Appointment of Trustees Act...

      43. Human Rights Act 1998 (c. 42)

          1. 43. In section 4(5) of the Human Rights Act 1998 (c....

      44. Access to Justice Act 1999 (c. 22)

          1. 44. In paragraph 1 of Schedule 2 to the Access to...

      45. Adoption and Children Act 2002 (c. 38)

          1. 45. In section 52(1)(a) of the Adoption and Children Act 2002...

      46. Licensing Act 2003 (c. 17)

          1. 46. (1) The Licensing Act 2003 (c. 17) is amended as...

      47. Courts Act 2003 (c. 39)

          1. 47. (1) The Courts Act 2003 (c. 39) is amended as...

   7. SCHEDULE 7

      Repeals