The value of investments and any income from them can fall and you may get back less than you invested.

Review of the Mental Capacity Act 2005 Code of Practice


The Ministry of Justice has launched a consultation on potential revisions to the MCA Code of Practice.

The consultation was launched on 24 January and closes on 7th March this year.  It asks practitioners in England and Wales to suggest potential revisions to the above Code of Practice (COP).  

The COP (all 296 pages of it) is a key document supporting the Mental Capacity Act 2005 (MCA) with practical guidance and examples of best practice for dealing with people who lack capacity to make their own decisions about their care and treatment or who want to prepare for the loss of capacity.

The key reason for the consultation is the new system of “Liberty Protection Safeguards” which are due to replace the current system of Deprivation of Liberty Safeguards which, following the Supreme Court’s decision in 2014, now all have to be judicially approved. This has resulted in the system failing to work altogether given that hundreds of thousands of cases have had to be dealt with through the Courts. 

In 2017 the Law Commission for England and Wales recommended the new Liberty Protection Safeguards model and this will be incorporated in a new Mental Health Act which the Government has promised following the publication of the final report from the Independent Review of the Mental Health Act 1983.  The Mental Capacity Act itself is not being reviewed. 

The Liberty Protection Safeguards recommended by the Law Commission are based in care planning and provide a simpler and streamlined system.  There will be independent oversight of all authorisations and a strengthened role for and consultation with families and carers.  A separate code of practice is being developed to support the Liberty Protection Safeguards and this will form a part of the revised MCA Code of Practice, hence the opportunity is being taken to review the COP in its entirety.

With the number of elderly persons suffering from dementia steadily increasing (it is estimated there are about 2 million people in England and Wales alone who have lost capacity through dementia, disability or injury), whilst financial advisers are unlikely to be involved in day to day practical issues of assessing capacity, it is important to be aware of what legislation exists and what codes of practice are in place to help those involved in this area.

Please note that this document was prepared by a third party and as such Brewin Dolphin is not responsible for the content or able to answer queries on the topics dealt with. While we believe it to be correct at the time of writing, Brewin Dolphin is not a tax adviser and tax law is subject to frequent change. Therefore you should not rely on this information without seeking professional advice from a qualified tax adviser, who should also be able to assist you with any questions on the content. 

This document was prepared as a general guide only and does not constitute tax or legal advice.



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