1. 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

2. Property and Financial Matters Health and Welfare Matters
Agenda
Introduction to the Mental Capacity Act 2005 (“MCA”) and the tests of capacity
Property and Financial Matters
Health and Welfare Matters

3. 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

4. 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

5. 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.

6. What are the options in managing our affairs?
Individual Capacity Lasting Power of Attorney (Financial or Health) or General PofA (Financial only) If LPA fails or GPA capacity lost Incapacity Court of Protection appointed Deputy NB: appointees

7. What are the options in managing our affairs?
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

8. 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

9. 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

10. 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

11. Proceedings in the Court of Protection
Financial deputies have to give security to cover their 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

12. 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

13. 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

14. Tips and traps cont’d
Consider financial implications for the person injured AND dependants
Benefits
Debts
Mortgages
Pensions
Wills
Separate finances

15. 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

16. 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

17. 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

18. 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 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)

19. Health and Welfare Matters – Lasting Powers of Attorney
Form registered with the Office of the Public Guardian with 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

20. Health and Welfare Matters – Court of Protection role
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

21. Health and Welfare Matters – Court of Protection role

22. Proceedings in the Court of Protection
Further information can be found at the following sources:

23. Proceedings in the Court of Protection
Thank you for your time! /