The Court of Protection has the power to make decisions on behalf of those who lack mental capacity. The Court of Protection’s assistance is usually required where people do not have a registered Lasting Power of Attorney in place prior to losing capacity. A Lasting Power of Attorney allows one’s elected deputies to make decisions regarding either one’s health or finances or both. Without this in place, the Court of Protection must step in to assist those who are incapable of making their own decisions.
The Court of Protection holds tremendous power as they are able to effectively take control of a person’s health and finances. The Court of Protection may determine whether one lacks the mental capacity to make a particular decision, as well as having the power to make those decisions on their behalf. In addition, the court may appoint deputies for someone who lacks mental capacity. These deputies will be able to make future decisions on behalf of the person thus removing the need for the involvement of the Court of Protection. Furthermore, the Court of Protection also has the authority to consider a Lasting Power of Attorney or the previous Enduring Power of Attorney; applications to make statutory gifts or wills; and whether someone may be deprived of their liberty under the Mental Capacity Act 2005.
Mental Capacity
It is a delicate process to assess whether one has the mental capacity to make a decision at the required time. It is often advised that a medical professional should be called upon to assess one’s mental capacity. One is capable of making a decision for themselves if they understand and can retain the information surrounding the decision, in particular, the consequences of making such a decision. Moreover, they should be able to consider the options available to them, select which option they wish to proceed with, and communicate their choice. Communication of their decision does not need to be oral, it can be as simple as blinking an eye or a hand movement.
It is important to note that simply because someone is unable to make a decision at that very moment, this does not negate the possibility of them making the decision at another time. If it is possible for the decision-making to be postponed until the person is able to make the decision themselves, then the decision must be deferred until they are in a position to do so.
Furthermore, it is preferred for one to make a decision with the assistance of others rather than others imposing a decision upon them, as the most favoured outcome is that one is able to make informed decisions for themselves. When assisting someone in deciding a matter, it is important to make the process as simple as possible. This may be by giving the person ample time to consider the decision; discussing the matter at a time and place where they are comfortable; using informal or unorthodox methods of explaining the matter to them such as pictures or videos; and dividing large decisions into smaller, less complex ones.
Deputies
You may apply to be someone’s deputy if you are over eighteen years of age, pay the requisite fee, and are capable of doing so. There are two different types of deputies, one concerns a person’s welfare, and the other handles the property and financial affairs of a person. There may be more than one deputy who handles both decisions, or one person may be both deputies. On some occasions, only one type of deputy is required, such as where someone is unable to make their own financial decisions however is able to determine their medical treatment. If one wishes to be someone’s Property and Financial Affairs deputy, they must have the expertise to make financial decisions on their behalf.
Being a deputy carried many responsibilities and it is vital that every decision they make on someone’s behalf is made in their best interest. If one becomes a Property and Financial Affairs deputy it is of the utmost importance that they keep their finances completely separate and write an annual report detailing the person’s finances.
If there are no willing deputies available, the Court of Protection has the power to appoint a ‘specialist deputy’ from an approved list of law firms or charities.
Please contact John Szepietowski or Kay Stewart to discuss any questions relating to powers of attorney on 01372 303444 www.audleychaucer.com
