Parliamentary Under Secretary of State for the Ministry of
Justice (): ‘Today I am publishing the
government’s response to the consultation on a small payments
scheme for the Mental Capacity Act 2005.
The Mental Capacity Act (MCA) is a crucial piece of legislation
that protects vulnerable individuals who may be unable to make
decisions for themselves. The principles of the MCA guide us in
empowering these individuals to make their own decisions when
possible and supports their families and carers to make decisions
in their best interest when necessary.
It is a long-held principle that an adult must have proper legal
authority to access or deal with property belonging to another
adult. In cases where the adult lacks mental capacity, the MCA
provides the framework for them to grant legal authority by
appointing a lasting power of attorney (LPA) while they still
have mental capacity, or for third parties to obtain legal
authority through applications to the Court of Protection (CoP).
Concerns have been raised that the existing CoP process for
obtaining legal authority to access accounts on behalf of
individuals who lack mental capacity creates barriers to access
small value assets. This has particularly been highlighted in the
case of accessing matured Child Trusts Funds, where a campaign by
the families of young adults with learning disabilities has led
to attention in both the Lords and Commons
In response to these concerns, Government decided to examine
whether there was a case for an alternative process to the
current CoP deputyship where access to small funds was required.
We consulted on a small payment scheme that would be run by
financial services firms and permit access for six months to
limited funds up to £2500 from one account belonging to an
individual who lacks mental capacity without an order from the
CoP being sought. The scheme set out to meet three aims:
- Scope: Scheme must be broad enough to be useful and avoid
inadvertent discrimination
- Security: Assets of vulnerable individuals should not be
subject to unacceptable financial risk; and
- Simplicity: The scheme must be straightforward and allow
quicker access to limited funds than current processes, whilst
being easy for financial service firms to implement.
The consultation received 225 responses and provided the
opportunity for key stakeholders from the financial, legal and
disability sectors as well as parents and carers supporting those
who lack mental capacity to share their concerns about the
current system and opinions on the new proposal.
The consultation provided clear evidence of the challenges faced
in the current system. Most consistently respondents complained
of the lengthy and complex CoP application forms, and the time
taken to complete the application. It has also become apparent
through the consultation that there is a general lack of
awareness of the MCA. In many cases families and carers are often
caught off guard when their child turns 18 as they were not aware
of the MCA and the need to obtain legal authority to manage
another person’s financial affairs if they lack capacity.
I want to make it simpler and quicker for the people who care for
individuals who lack mental capacity to access the funds on their
behalf. The evidence demonstrates that legislating for a small
payments scheme would fail to address the underlying challenges
preventing access to small value assets. Instead, the best
approach is to focus on addressing the underlying barriers in the
current system to accessing small value assets. To do this, the
government will work with the Court of Protection to improve
application processing times and simplify court forms, and
collaborate with OGDs, charities, and the finance sector to
increase awareness of the MCA among parents and caregivers of
young people without capacity as they transition to adulthood.
Importantly, this approach will also maintain protections and
support for vulnerable people and their rights. The steps
outlined uphold the principles of the MCA to empower individuals
without mental capacity to make their own property and affairs
decisions when possible and support their families and caregivers
to make decisions in their best interest when necessary. This is
essential for protecting vulnerable individuals from fraud,
abuse, and coercion.
I hope the publication of this response will demonstrate the
thorough consideration given to this issue and the impact on
those individuals who lack capacity. As my predecessor Minister
Pursglove said when launching the consultation, these individuals
must come first and should not lose the protections provided by
the MCA. It is my belief that this response rightly honours
that.’
