Tag: mental capacity | Wills Jacobsen

Deputies are appointed by the Court of Protection (COP) to manage the property and affairs and/or personal welfare of someone who lacks capacity to make certain decisions for themselves.

If a person does not have a Lasting or Enduring Power of Attorney, and they lack the mental capacity to make decisions, there might be the need for the COP to appoint a deputy.

A deputy is appointed by order of the COP. The order is the document setting out the Deputy’s powers.

If you have been appointed as a deputy for property and financial affairs, your powers may include receiving income, such as benefit payments, retirement pension, occupational pension, or interest and dividends earned on investments. The order may also authorise you to receive capital, such as money from banks, building societies or other financial institutions held on behalf of the person lacking capacity, and to spend this money appropriately on their behalf.

The Mental Capacity Act 2005 (MCA) provides a statutory framework to empower people to make decisions for themselves as far as is possible and to protect vulnerable people who may not be able to make all their own decisions.

The MCA covers major decisions about health and welfare and property and financial affairs, as well as everyday decisions about health, care and daily spending.

When making decisions, deputies must have regard to the Code of Practice (the ‘Code’), which supports the MCA and provides guidance for people – such as family members, professionals and carers – who work with and/or care for adults who lack capacity.

The Code also describes the responsibilities of deputies when acting or making decisions with or on behalf of individuals who lack capacity.

Deputies are supervised by the Public Guardian. They are checked routinely to ensure they are complying with the terms of the COP’s order, that decisions made are in accordance with the Code and that they are acting in the best interests of the person lacking capacity.

If the Public Guardian considers that a deputy has not fulfilled their duties, the COP may consider this, and may discharge the deputy and appoint a new deputy in their place.

Being appointed as a deputy can take several months and the costs involved far exceed the costs of making a Lasting Power of Attorney (LPA). We advise all our clients to make an LPA so they have the choice and are in control of who would manage their affairs if they can no longer manage them personally.

An IMCA is an “Independent Mental Capacity Advocate”. An IMCA acts for a person who has a condition that is affecting their ability to make decisions.

Such a condition could be an acquired brain injury; learning disability; mental illness; dementia; and even the effects of alcohol or drug misuse. Capacity can also be affected by other illness, trauma or other factors.

Advocacy is taking action to help people:

express their views and wishes;

secure their rights;

have their interests represented;

access information and services; and

explore choices and options.

In some situations, an advocate will represent another person’s interests. This is called “non-instructed advocacy” and is used when a person is unable to communicate their views.

Anyone who has a condition similar to that mentioned above may need advocacy at a specific time in their life. This could be because they need support to:

make changes and take control of their life;

be valued and included in their community; and

be listened to and understood.

IMCA’s are available to any person aged 16 years or older, who has no one able to support and represent them. An IMCA therefore safeguards the rights of people who:

are facing a decision about a long-term move or about serious medical treatment;

lack capacity to make a specified decision at the time it needs to be made; and

have nobody else who is willing and able to represent them or be consulted in the process of working out their best interests, other than paid staff.

Local authorities and NHS bodies have powers to involve IMCAs in other decisions concerning:

a care review; and

adult protection procedures (even in situations where there may be family or friends to consult).

IMCAs are independent and generally work for advocacy providers who are not part of a local authority or the NHS. They are available to people who are in prison, in hostels and on the streets and who lack capacity to make decisions about the type of things mentioned above.

IMCAs cannot be instructed if:

a person who lacks capacity has nominated someone to be consulted specifically on the issue in question;

a person has a personal welfare Attorney who is authorised specifically to make decisions on the issue in question; or

a personal welfare Deputy has been appointed by the Court with powers to make decisions on the same issue

However, where a person has no family or friends to represent them, but does have an Attorney or Deputy who has been appointed solely to deal with property and affairs, then an IMCA must be instructed.

In a nutshell an IMCA is a safeguard for people who lack capacity, who have no one else other than paid staff who ‘it is appropriate to consult’ (apart from adult protection cases where this criterion does not apply). The safeguard is intended to apply to those people who have no network of support, such as close family or friends, who take an interest in their welfare.

Do you have a friend or relative that lacks capacity? If so get in touch for help and advice on 01487 808000

01487 808000

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