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Consultation will help shape modern capacity policy

Monday, 24 August 2020

The public are invited to give their views on proposals to enhance the protection of vulnerable people who are unable to make their own decisions.

A consultation has opened on the key policies and principles intended to safeguard those who lack capacity to make decisions about their health, welfare and finances.

Feedback from the survey will shape the Island’s emerging capacity policy, to be brought forward by the Isle of Man Government in a draft bill later this year. The consultation is the first part of a process which will see further public comment and review invited at a later stage, to ensure that a wide range of feedback is taken into account as the landmark bill is drawn up.

Capacity laws give rights to people who cannot make decisions for themselves and provide a legal framework for decision-making on behalf of those who lack capacity to do so. The consultation sets out well-established principles in this area, offering clear definitions and guidance on the way capacity should be assessed. It also outlines how a person can make arrangements for their affairs to be managed in the future, should they lose capacity to make decisions.

Health and Social Care Minister David Ashford said:

‘This consultation marks a significant step in the formation of important new legislation for the Island. The purpose at this stage is to gather a wide variety of views from members of the public.

‘Capacity issues could affect ourselves or our loved ones at any time, so it is vital we have a modern legal framework to protect vulnerable people when they cannot make decisions for themselves, and allows for others to act their behalf.

Minister Ashford added:

‘This is a genuine opportunity for people with an interest in this area to share their views with us, and help shape policy for the long term.’

The Isle of Man’s proposals draw on legislation in England and Wales* and the consultation includes links to useful background information, with examples illustrating capacity policy in action. The proposals include a number of additional safeguards beyond the legislation in England and Wales to protect those who lack capacity in the Isle of Man.

A key proposal is the creation of a new Lasting Power of Attorney (LPA) which will allow one or more people to help an individual make decisions about their health and welfare, or make decisions on their behalf. This will replace the existing Enduring Power of Attorney, which is currently limited to financial and property matters.

The extended scope of the new LPA will mean decisions about medical care or moving to a care home can be made on behalf of another person when this is thought to be in their best interests. A Lasting Power of Attorney can only be granted by a person with capacity, and the consultation sets out the criteria which must be met at every stage of the process.

Proposals highlight the key principle that anyone making a decision on behalf of someone else should always consider their past and present wishes and feelings, their beliefs and values, and that the person should be encouraged as far as possible to participate in the decision. 

Currently, the court can make decisions relating to property and financial affairs for a person who lacks capacity, but who has not appointed anyone to make decisions for them. It is proposed to extend the power of the court to include health and welfare decisions. An additional new role of Independent Capacity Representative is also proposed.

The Capacity consultation runs until Friday 2 October.

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