Mental Capacity Act 2008

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4 Persons who lack capacity

5 Inability to make decisions

7 Acts in connection with care or treatment

8 Section 7 acts: limitations

9 Payment for necessary goods and services

10A Interpretation of this Part

10B Establishment of electronic transaction system

10C Requirement to use electronic transaction system

10D Electronic transaction system malfunction, errors and omissions

11 Lasting powers of attorney

12 Appointment of donees

12A Execution of lasting power of attorney

13 Lasting powers of attorney: restrictions

14 Scope of lasting powers of attorney: gifts

15 Revocation of lasting powers of attorney, etc.

15A Rectification by Public Guardian

16 Protection of donees and others if lasting power of attorney not validly created, revoked or suspended, etc.

16A Protection of donees and others if electronic copy of lasting power of attorney has relevant error

17 Powers of court in relation to validity of lasting powers of attorney

18 Powers of court in relation to operation of lasting powers of attorney

19 Power to make declarations

20 Powers to make decisions and appoint deputies: general

21 Powers to make decisions and appoint deputies: minors

22 Section 20 powers: personal welfare

23 Section 20 powers: property and affairs

24 Appointment of deputies

25 Restrictions on deputies

25A Professional deputies

26 Excluded decisions

27 Mental Health (Care and Treatment) Act 2008 matters

31 Functions of Public Guardian

31A Public Guardian may interview donor

32 Powers of investigation by Public Guardian

32A Evidence of transaction with Public Guardian

33 Appointment of auditors

33A Rectification or updating on Public Guardian’s initiative

34 Protection from personal liability

35 Board of Visitors

36 Interim orders and directions

36A Orders of suspension

37 Power to call for reports

38 Applications to court

39 Family Justice Rules

41 Codes of practice

43 Information relating to persons who lack capacity

43A Notification of change of address

43B General exemption

43C Service of documents

44 Jurisdiction of District Court

45 Amendment of Schedules

47 Savings and transitional provisions

Persons who lack capacity

4.—(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time the person is unable to make a decision for himself or herself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2) It does not matter whether the impairment or disturbance is permanent or temporary.

(3) A lack of capacity cannot be established merely by reference to —

(a)	a person’s age or appearance; or
(b)	a condition of the person, or an aspect of the person’s behaviour, which might lead others to make unjustified assumptions about the person’s capacity.

(4) In proceedings under this Act (other than proceedings for offences under this Act), any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

(5) Subject to section 21, no power which a person (“D”) may exercise under this Act —

(a)	in relation to a person who lacks capacity; or
(b)	where D reasonably thinks that a person lacks capacity,

is exercisable in relation to a person below 21 years of age.

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