Adults with Disabilities – Court of Protection
The number of adults who lack capacity to make their own decisions in relation to their property and affairs is expected to dramatically increase in the coming decade. This is due largely to an aging population and the increasing number of dementia cases diagnosed each year. The Alzheimer’s Society reports that there were 800,000 people in the UK with a form of dementia in 2012 and have estimated that by 2021 there will be one million sufferers. People with dementia represent only one group who may require the support of a substitute decision maker. Others lacking capacity may include – people with mental illness, intellectual disability and acquired brain injury.
Court of Protection – Deputyship
An individual who has not made a Lasting Power of Attorney or an Enduring Power of Attorney and no longer has sufficient mental capacity to do so may need the involvement of the Court of Protection to enable a relative, friend or professional Deputy to manage their affairs.
What is a Deputy?
Deputies are appointed to make decisions for people who lack the capacity to do so themselves. As indicated above, a Deputy is usually a relative or friend of the person who lacks capacity, but may be a professional. Deputies are appointed by the Court of Protection. They must make decisions in the best interests of the person lacking capacity. The order made by the Court of Protection will detail the specific powers given to the Deputy.
What are the duties of a Deputy?
The primary duty of a Deputy is to act in the best interests of the person who lacks capacity.
The order appointing the Deputy sets out the specific powers given to the Deputy in relation to the person who lacks capacity.
Powers may apply to any aspect of that person’s life, including their finances, personal welfare, consent to medical treatment and social care interventions.
A Deputy should always:-
- make decisions in the person’s best interests;
- make only those decisions authorised by the order;
- have regard to all relevant guidance in the Code of Practice issued by the Court of Protection;
- adhere to the five statutory principles of the Mental Capacity Act 2005; and
- apply a high standard of care when making decisions.
What is the Code of Practice?
This provides information and guidance for anyone affected by the Mental Capacity Act and explains how it works in practice. It gives details of the responsibilities of those who work with and care for adults who lack capacity including relations, friends and professionals.
All Deputies must be familiar with and have regard to the Code.
What are the Mental Capacity Acts five Statutory Principles?
The five principles provide a bench mark for carers and are:-
1. Every adult has the right to make their own decisions and must be assumed to have capacity unless it is proven otherwise.
2. People must be given all appropriate help before they can be considered unable to make their own decisions.
3. Individuals have the right to make unwise decisions, including decisions that others may consider eccentric.
4. Anything done for or on behalf of a person who lacks capacity must always be in their “best interests”.
5. Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.
Our Court of Protection experience
We have wide and lengthy experience in Court of Protection and Deputyship matters and can assist clients with:-
- applications to the Court of Protection for the appointment of a Deputy;
- acting as a professional Deputy;
- assisting lay-deputies in matters relating to the Court;
We also have wide experience in disputes arising out of Court of Protection appointments. We act for families and carers challenging decisions made by Deputies often involving “best interests” cases. We provide advice and representation in the Court of Protection itself in which we have specialist advocates.
If you would like more information about our Court of Protection service, please request a call back and talk to one of our dedicated solicitors today.