Powers of Attorney and ‘Lack of Capacity’ under the Mental Capacity Act 2005: A Narrowing of the s 44 Offence? R v Kurtz [2018] EWCA Crim 2743

Abstract

The Mental Capacity Act (MCA) 2005 marked a turning point in the statutory rights of people who may lack capacity. The legislation sought to place the individual at the centre of decision-making and was viewed as having the potential to give people a voice and an opportunity to be heard. Section 44 of the legislation introduced a criminal offence of ‘ill treatment or neglect’ of a person who lacks capacity. The maximum sentence of five years’ imprisonment (or a fine or both) was intended to underly the seriousness of the offence, especially considering the vulnerability of potential victims. Interpreting s 44 has, however, proved a real challenge and the courts have acknowledged the difficulties which its drafting presents. The recent Court of Appeal (COA) decision in R v Kurtz is illustrative of the kind of issue that the statute has generated. The court was tasked with deciding whether proving a lack of capacity on the part of the victim is required when the donee of a power of attorney is charged with the offence under s 44(1)(b). This article considers Kurtz within the context of the MCA 2005 and notes three related COA decisions. It examines what impact Kurtz may have on future prosecutions brought under s 44(1)(b) and considers the future of the s 44 criminal charge more generally.

Creating A User-Friendly Environment for The Elderly in The Context of Power of Attorney in Malaysia

“…The principal objective was to abolish the common law rule that a power of attorney was revoked by the subsequent mental incapacity of the donor. The EPA addresses property and financial matters (Taggart, 2020). Subsequently, the Mental Capacity Act 2005 (MCA 2005) came into force on 1 October 2007.…”

“…One compelling consideration was to enable people to plan for any incapacities by selecting trusted individuals to act on their behalf (Griffith, 2018). The MCA 2005 introduced Lasting Powers of Attorney, which allow the person making the Lasting Powers of Attorney (the donor) to give power to someone else (the donee) to make decisions on the donor's behalf (Bowstead & Reynolds On Agency, 2006) if, in the future, they lose capacity (Taggart, 2020). The donor decides who the donee should be and how broad the powers should be.…”

“…The donor decides who the donee should be and how broad the powers should be. There are two types of Lasting Powers of Attorney as opposed to one in the EPA, namely the Property and Financial Affairs Lasting Powers of Attorney and Health and Personal Welfare Lasting Powers of Attorney (Taggart, 2020). The Property and Financial Affairs Lasting Powers of Attorney refers to a person's property (such as a house or apartment, jewellery, and other valuables), their income, savings, and investments, as well as any expenditures (GOV.UK, 2020).…”

“…Section 44 of the MCA made 'ill treatment or neglect of a person lacking capacity' a criminal offence (Taggart, 2020). The maximum penalty is five years in jail, a fine, or both.…”

A Power Of Attorney Legality For Indonesian Citizens From Overseas To Proceed In Indonesian Courts

“…If someone gives a letterhead from the power of attorney, it can still be justified because the giver of the power of attorney is the boss while the recipient of the power of attorney is a "lack" (the person who was ordered). (Taggart 2020) There are two types of power of attorney in terms of their sides, namely general power of attorney and special power of attorney. A general power of attorney is a power of attorney from one person to another to manage some or all legal actions concerning the interests of the power of attorney.…”