What is the relevance of the Mental Capacity Act to the housing sector?

The Mental Capacity Act is of relevance to anyone who works with, or cares for, people with dementia. Its five statutory principles are fundamental:

A person must be assumed to have capacity unless it is established that they lack capacity
A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success
A person is not to be treated as unable to make a decision merely because he makes an unwise decision
An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests
Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedoms of action

Housing sector staff need to know the provisions of the Act because:

In certain circumstances they may have to take action or make a decision for someone who lacks the capacity to do it, or make it, themselves
Housing staff need to know the principles and limitations governing any such action or decision
It is relevant when signing Tenancy Agreements or leases
It is potentially empowering for support staff who know a service user well, and wish to advocate on their behalf
Housing staff need to understand the hierarchy of authority if someone lacks the capacity to make a particular decision
Housing staff need to be aware of the different mechanisms for decision-making in the event of loss of capacity, and whether any particular instrument has been arranged by a service user
While Deprivation of Liberty Safeguards (DOLS) do not apply to housing settings, the principles in relation to deprivation of liberty do apply
The Act has a code of practice which housing staff need to apply

Housing Provision and the Mental Capacity Act (opens new window) - Housing LIN Factsheet No20 and information sheets explain in detail the Act's provisions and their relevance to those likely to lack capacity concerning arrangements for housing.

The Mental Capacity and Supported Housing training set (opens new window) comprises:

A Powerpoint presentation covering the main elements of the Act
Some case studies with questions for group discussion
A Powerpoint presentation on the different legal opinions regarding tenancies and capacity
Some case studies on tenancies and capacity
A Powerpoint presentation on Lasting Powers of Attorney and applications to the Court of Protection

Legal Aspects of Housing for People with dementia (opens new window) is a Powerpoint presentation given by Belinda Schwerh, legal and training consultant. This presentation at a conference on extra care housing and dementia in 2006 outlines a range of legal matters in this context including the Mental Capacity Act and tenancies, avoiding registration under the Care Standards Act, recent case law, and Law Commission proposals for a new form of tenure. Some aspects are now out of date but much remains relevant and valid.

West Midlands Mental Capacity Act event in 2007 (opens new window) - This resource comprises a series of presentations on the Mental Capacity Act and its implications for the housing sector, given from different perspectives. They include:

A Provider Perspective on the Implications for the Housing, Care & Support Sector - by Anthony McCool, Trident
Housing with Care: Issues Arising Out of the Mental Capacity Act - by Jeremy Porteus, CSIP
Mental Capacity Act 2005 - Relevance for Housing Practitioners - by Fiona Bateman, Care and Health Law
Mental Capacity Implementation Programme - by Paul Gantley, CSIP
Progress Update in the West Midlands - by Richard Bartholomew, CSIP