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Mental Capacity Act
Unsolved mysteries under the Act – look out for caselaw coming your way soon….
• Just how far can an LPA go in welfare decision-making? They can’t for instance authorise detention, however good it might be for someone. Can they stop their loved one seeing someone? Can they stop someone else from seeing their loved one?
• Will electronic tagging avoid authorities and organisations having to admit that their care amounts to deprivation of liberty?
• Will there be a court case authorising deprivation of liberty in a person’s own home, rather than a care home?
• What is the legal position of someone a) after October 1st 2007 b) before the Bournewood Safeguards come into force c) who needs to stop someone leaving a care home?
• Can a financial lasting power of attorney holder insist that a local authority does NOT place the grantor of the power into a fee-paying placement in a care home?
• Can a welfare and financial LPA a) consent to a direct payment ‘for’ the client? b) manage a direct payment ‘for’ the client? c) continue to receive a direct payment as if s/he were the client, after s/he is of the view that the person acted for no longer has even the capacity to manage the payment, with all the help in the world?
• Will the ‘spending money’ provisions open clients up to more risk of financial abuse rather than less? What about differences of opinion as to what is a necessary item or service for a person without capacity to make such decisions?
• How is a local authority deputy supposed to do right by the client, and at the same time act under the fiduciary duty and duty to treat people equitably, under the community care legislation?
