Dealing with Capacity and issues
surrounding the Court of Protection
Glen Miles (Partner and Court of Protection Deputy)
Stella Mullane (Associate and Court of Protection Practitioner)
Wednesday 28th November 2012
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Agenda
- Introduction to the Mental Capacity Act
2005 (“MCA”) and the tests of capacity
- Property and Financial Matters
- Health and Welfare Matters
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Mental Capacity Act 2005
- Passed in 2005 in the run up to the General Election
- Came into force on 1st October 2007
- Statutory basis for capacity issues and consolidated law
- 5 Guiding Principles paramount
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Mental Capacity Act 2005
- Key presumption of capacity – MCA only comes into effect if
a person is shown to lack capacity
- Capacity is decision specific – meaning a person may have
capacity to make some decisions but not others
- Applies to all financial, health and personal welfare
decisions of those temporarily or permanently lacking in
capacity to make the relevant decision
- Any decision taken must comply with the Act, Code of
Practice and Best Interests test
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Mental Capacity Act 2005
5 Guiding Principles of the Act:
- Presumption of capacity - lack of capacity must be proved
- Support individual - facilitate decision making by person
- Unwise decisions - are our right and not by itself evidence
- Best Interests - any act or decision must be made with the
best interests of the person in mind
- Least restrictive option - examine if an outcome can be
achieved in an alternative and less restrictive way
The MCA and Code of Practice sets out factors and tests.
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What are the options in managing our affairs?
Individual
Capacity
Incapacity
Lasting Power of Attorney
(Financial or Health) or
General PofA (Financial only)
Court of Protection
appointed Deputy
If LPA fails or GPA capacity lost
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NB: appointees
What are the options in managing our affairs?
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Client without significant assets (informal approach)
DWP / NHS / LA Appointee
OR any of below
Client with significant assets (formal approach)
If has capacity within Mental Capacity Act 2005 definition
General or Lasting Power of Attorney option
 If lacking / fluctuating capacity formal application to Court of
Protection for appointment of Deputy
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Lasting Powers of Attorney
Two types – cover health or finances (can have both)
Very long documents with notes and additional pages (around
15 pages on average)
Very flexible – limits of power, giving of guidance and
imposition of restrictions all possible
Have to be registered at Office of the Public Guardian before
they can be used (£130 Court Fee per PofA)
Minimal supervision by the Public Guardian
Good balance between cost, flexibility and protection
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Court of Protection (Financial Deputies)
Only used if lack of capacity and no less restrictive option
available and no valid EPA / LPA in place
Requires formal application to Court of Protection
Anyone can apply
Application must contain full financial and family details of “P”
Must contain medical evidence in prescribed form
Covered by Code of Conduct under Mental Capacity Act 2005
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Proceedings in the Court of Protection
- Formal process of appointing deputy to make decisions
where urgent authority required or prolonged incapacity
- Requires form COP3 Medical Certificate for the Court to
consider granting authority or authorising an act
- More likely to have a financial deputy appointed rather than
health and welfare
- Health and welfare decisions are more likely to be single
acts rather than general authority except in more severe
cases
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Proceedings in the Court of Protection
- Financial deputies have to give security to cover their
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actions
Governed by all principles of MCA and Code of Practice
Authority set out by Court order, may be wide or restricted
Professionally regulated deputies likely to be granted wider
authority than lay deputies
Further authorities / applications may need further or
specific medical evidence (statutory wills, gifts etc)
An order does not prevent individual making decisions
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Proceedings in the Court of Protection
Key points for consideration:
- What decision is to be made and what test applies
- Work with fellow professionals to establish capacity
- If capacity is lacking choice of deputy is important and
nature of order
- Deputyship is an on going process and will require
considerable administration especially where significant
assets or compensation are involved
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Tips and Traps
Do not leave it too long to start the process rolling – court
applications 3-4 months
LPAs are “insurance” policies
Make the most of your legal adviser
- Avoid crisis point by getting advice
- Appointeeship – quick and easy in short term
- PI Trusts
- Budget
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Tips and traps cont’d
Consider financial implications for the person injured AND
dependants
- Benefits
- Debts
- Mortgages
- Pensions
- Wills
Separate finances
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Health and Welfare Matters – the basics
Key points to remember for Health & Welfare Matters: -
 “P” is assumed to have capacity unless shown otherwise
 It is the decision makers responsibility to show the lack of capacity
 Capacity is decision specific
 Support should be provided for “P” to facilitate a decision
 A decision can only be made if “P” lacks capacity
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Health and Welfare Matters – the options
What are the options for someone wishing to make provision for their
future care or treatment?
 Make an Advanced Decision
 Make a Health and Welfare Power of Attorney
 Rely on next of kin / Healthcare professionals (including DOLS)
 Apply to the Court of Protection for a direction, decision or for the
appointment of a Deputy
 s5 MCA protection
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Assessing Capacity – medical / health / welfare
- The test is the statutory test laid out in the MCA
- The case law pre MCA remains valid in applying the MCA
test
Practical points:
- record reasons for doubts over capacity in medical records
- detail the assessment process and outcomes
- the significance of the decision dictates the formality
- follow the MCA Code of Practice and to see if further
opinion is required
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Health and Welfare Matters – advanced decisions
 No prescribed format / form (can be oral or in writing)
 As such no certification or safe guard concerning undue
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influence, capacity or such issues and is not registered at OPG
If in writing and witnessed an AD can cover life sustaining
treatment but needs to be specific and MCA 2005 compliant
No consultation if effective – has to be adhered to
Negative is lack of flexibility and human touch – black and white
document or if oral open to challenge / misinterpretation
Emergencies (note s5 MCA protections)
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Health and Welfare Matters – Lasting Powers of Attorney
• Form registered with the Office of the Public Guardian with
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appropriate legal safeguards and certificates
Can extend to life sustaining treatment decisions
Can only be used where incapacity applies (as with an AD)
Can name people to be consulted and duty to consult
Medical staff covered by best interests rule
Advantage of the human touch, end of life care and residence
Problem of emergencies remains
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Health and Welfare Matters – Court of Protection role
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Rulings on applicability or validity of advanced decisions
Rulings on validity of LPAs
Best interests declarations
Single decisions (often headline cases)
Appointments of Deputies for a decision, treatment or long
term (although the latter is rare)
• Emergency situations remain problematic
• Cost is significant and general rule is parties pay their own
costs
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Health and Welfare Matters – Court of Protection role
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Proceedings in the Court of Protection
Further information can be found at the following sources: http://www.direct.gov.uk/en/Governmentcitizensandrights
http://www.bma.org.uk/ethics/consent_and_capacity
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Proceedings in the Court of Protection
Thank you for your time!
glen.miles@asb-law.com
stella.mullane@asb-law.com
01622 656556 / 01293 861305
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