Mental Capacity Act: Small Payments Scheme

Overview

It is a long-held legal principle that an adult must have proper legal authority to access or deal with property belonging to another adult. Where an adult has mental capacity, this legal authority can be provided by an ordinary power of attorney. Where the adult lacks mental capacity the Mental Capacity Act 2005 (MCA) provides the framework for them to grant legal authority by a lasting power of attorney  while they still have mental capacity, or for third parties to obtain legal authority through applications to the Court of Protection .

Concerns have been raised with the Ministry of Justice regarding the length and the complexity of the Court of Protection process when trying to access small balances. Some consider the process disproportionate and overly-burdensome where there are limited sums of money involved. Further investigation has revealed that there may be some individuals who require access to small amounts of money to support the specific needs of a person without mental capacity but may feel a Court of Protection order is  not appropriate  or find the application process for a one-off order off-putting, too complex or disproportionate to the amounts of funds involved.

In light of this the Ministry of Justice has been examining the case for legislation to enable third-party access to limited funds without the need to obtain the form of legal authority currently required under the Mental Capacity Act. This consultation seeks your views on our proposals for potential changes to the legislation.