27 February 2020 | Comment | Article by Joy Davies
When a person lacks mental capacity to make decisions for themselves, by reason of a serious brain injury, dementia or severe learning disabilities, somebody can apply on their behalf to the Court of Protection for a deputy to be appointed to make decisions on their behalf.
There are two types of deputy:
- A property and financial affairs deputy who looks after things like their bills, benefits and pension;
- A health and welfare deputy who can make decisions about medical treatment and how someone is looked after.
In practise, however, health and welfare deputyships are extremely rare. S.16(4) of the Mental Capacity Act says that a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances. The treatment of s.16(4) was considered in the case of Re DC by Senior Judge Lush who said that, by nature, property and financial affairs issues involve “ongoing financial transactions which are often routine and rudimentary in nature and require little or no consultation with others” whereas for personal and welfare matters “the decision-making is essentially a collaborative process between family members, care staff, social workers, healthcare professionals and anyone else who has an interest in the welfare of the person concerned”.
The different nature of the two types of deputy decisions led to the court’s reluctance to appoint health and welfare deputyships.
THE CASE OF RE LAWSON, MOTTRAM AND HOPTON
A test case was brought in Re Lawson, Mottram and Hopton 2019 to provide guidance on health and welfare deputyships. The three families involved had children turning 18 and were worried about losing the parental responsibility under the guidelines for adults without capacity.
The case challenged the Mental Capacity Act Code of Practice at the time which indicated that health and welfare deputies would only be appointed “in the most difficult of cases”. It was argued that this operated as a presumption against health and welfare deputyships. The governing principle of the Mental Capacity Act was to act in the best interests of the patient, and therefore they argued there should be no other presumptions at play.
Haydn J in Re Lawson confirmed the best interests principle applied, and agreed that the Code should be re-worded to reflect this.
However, on considering the law in this area in full, he continued to support the long-standing view that usually when considering the best interests of an adult without capacity, a multi-disciplinary approach, on a decision-by-decision basis is almost always best.
The court will prefer to make a decision on specific issues and have the input from all those involved in the care of an adult without capacity. As a result, they will be unwilling to appoint health and welfare deputies.
In contrast, a property and financial affairs deputyship is often important for those who are unable to manage their finances and are appointed regularly by the Court of Protection.
HOW CAN WE HELP?
Hugh James is currently appointed by the Court of Protection as a professional property and financial affairs deputy for over 130 individuals. We have a fully multi-disciplinary approach in terms of how we manage our client’s finances. Our team comprises solicitors, a qualified social worker, a qualified accountant and legal assistants specialising in benefits. This depth of experience allows us to fully understand our client’s needs, which is key to managing their finances in the best way possible.
If you or a loved one has lost capacity, we can assist with the appointment of a lay deputy (somebody you know) or professional deputy (where Hugh James would act as deputy) for property and financial affairs. Please contact our Court of Protection team on 029 2267 5870 for more information.