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MCA 2005 s11

Law as at 1/5/09

Part I contents: 1, 2, 3, 4, 4A, 4B, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 16A, 17, 18, 19, 20, 21, 21A, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 39A, 39B, 39C, 39D, 39E, 40, 41, 42, 43, 44

All Parts: I, II, III, Schedules

Without commentary: Plain text, Legislation.gov.uk

Law

Lasting powers of attorney: restrictions

11.—(1) A lasting power of attorney does not authorise the donee (or, if more than one, any of them) to do an act that is intended to restrain P, unless three conditions are satisfied.

(2) The first condition is that P lacks, or the donee reasonably believes that P lacks, capacity in relation to the matter in question.

(3) The second is that the donee reasonably believes that it is necessary to do the act in order to prevent harm to P.

(4) The third is that the act is a proportionate response to-

(a) the likelihood of P's suffering harm, and
(b) the seriousness of that harm.

(5) For the purposes of this section, the donee restrains P if he-

(a) uses, or threatens to use, force to secure the doing of an act which P resists, or
(b) restricts P's liberty of movement, whether or not P resists,

or if he authorises another person to do any of those things.

(6) [...][1]

(7) Where a lasting power of attorney authorises the donee (or, if more than one, any of them) to make decisions about P's personal welfare, the authority-

(a) does not extend to making such decisions in circumstances other than those where P lacks, or the donee reasonably believes that P lacks, capacity,
(b) is subject to sections 24 to 26 (advance decisions to refuse treatment), and
(c) extends to giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P.

(8) But subsection (7)(c)-

(a) does not authorise the giving or refusing of consent to the carrying out or continuation of life-sustaining treatment, unless the instrument contains express provision to that effect, and
(b) is subject to any conditions or restrictions in the instrument.

Amendments

  1. Mental Health Act 2007 s50; Mental Health Act 2007 (Commencement No. 10 and Transitional Provisions) Order 2009 wef 1/4/09; omitting "But the donee does more than merely restrain P if he deprives P of his liberty within the meaning of Article 5(1) of the Human Rights Convention"