The Mental Capacity Act became law in 2007 bringing with it for the first time a framework and protections for some of the most vulnerable adults in society, those who lack the mental capacity to make decisions for themselves. The Court of Protection was created so that decisions can be taken under the law.
The capacity test contained within the Act defines whether a person is able to make a decision for themselves because of an impairment or disturbance in functioning of the mind or brain. It can be a temporary condition. The only relevance is whether the person is unable to make a decision at the time when one has to be made. A person lacks capacity if they are unable to understand the relevant information, retain it long enough to make the decision, weigh it up and communicate it. All appropriate help must be given to the person to enable them to make a decision.
If an individual is assessed as lacking capacity to make a decision for themselves, the person who makes that decision must do so in their best interests. There are many ways that this can be done and very often it depends on the type of decision to be made.
If someone is unable to manage their financial affairs due to mental incapacity, someone else will need to do so on their behalf. This can be by way of appointeeship through the Department for Works and Pension, a lasting power of attorney created while the person had capacity, or by the appointment of a deputy by the Court of Protection.
Unless a Lasting Power of Attorney has been created then it will be necessary for the Court of Protection to appoint a deputy to administer finances and give authority to sell or buy assets. The court process can take a long time which will cause significant problems if urgent action is needed. The application to the court will include a medical certificate confirming incapacity along with details of the assets, affairs and circumstances of the individual. A copy of the application must be served on the person concerned. They have the right to object. Once appointed, the deputy works within the powers granted by the court and must make an annual account to the Office of the Public Guardian.
Examples of the need for best interests decisions to be made about an individual’s welfare can arise at many stages in life. It can arise when a child born with a learning disability reaches the age of eighteen, and when an older person suffers a form of dementia which affects their ability to care for themselves. In such situations, decisions may need to be made on their behalf in relation to matters such as their place of residence, the care they receive and their contact with other people.
If all the people around them, including family, doctors and social workers, can agree what is in their best interests this decision can be recorded and implemented on their behalf. If these parties have different views about what is best and no agreement can be reached, it is the Court of Protection who will be asked to make this decision.
In cases where a lot of decisions will need to be made the Court of Protection can appoint a welfare deputy, whose role is to make those decisions on behalf of the individual concerned.
How Can We Help?
The best way of avoiding problems and expense is to make a Lasting Power of Attorney. This allows you to choose who you wish to appoint to deal with your affairs and offers a much quicker and cheaper alternative to a deputyship application.
We can help to prepare both lasting powers of attorney for welfare and finances.
We can also prepare applications to the Court of Protection for the appointment of a financial deputy and we can act for incapacitated individuals and their families where welfare issues are being determined. In relation to welfare matters we can also offer legal aid funding in appropriate cases.
Why choose odonnells?
We have a commitment and wealth of experience throughout our practice, which specialises in every aspect of mental health law. From detention in hospital under the Mental Health Act 1983, to advising community patients, guardianship, and Court of Protection, we have dealt with most situations. Our specialism allows us to keep up to date with the rules, regulations and case law from Tribunals, the Court of Protection and the European Court.
Even if the only question relates to the choice of care home or whether someone can go on holiday, a deep understanding of the law and procedure across the whole spread of mental health and capacity can save a good deal of worry, money and time.
We can see clients in the office, hospitals, care homes, or own homes. The majority of our clients are based in the North West of England, but additional travel can be accommodated, for example, for our existing clients who are moved out of this area, or in exceptional circumstances.