The Mental Capacity Act 2005 (‘the Act’) provides the legal framework for making decisions on behalf of individuals who lack mental capacity to make particular decisions for themselves. All Deputies are required to carry out their role in accordance with the principles laid down in the Act. All decisions must be made in the best interests of the person who lacks capacity having regard to the Act, its accompanying Code of Practice and the scope of authority conferred on the Deputy by the Court Order. Our solicitors in Essex and London are able to offer further advice relating to the role of a Deputy.
The duties of a Deputy will vary according to the specific needs of the person who lacks capacity. In all cases a Deputy must:
Maintain detailed financial records of all transactions carried out and records of all decisions made.
The Office of the Public Guardian currently supervises approximately 60,000 Deputies. The vast majority of these relate to Deputyship Orders concerning a person’s property and financial affairs. A minority of Deputyship Orders relate to decisions affecting a person’s health and welfare, however, such orders are relatively rare as a result of the Court’s approach to these types of decisions.
The Court’s general approach is that a Deputyship Order is not required to regulate day-to-day decisions affecting health and welfare, as those types of decisions are already regulated by the relevant provisions of the Mental Capacity Act 2005. Examples include actions and decisions in relation to health care, personal hygiene, dressing, eating and drinking, living arrangements, social contact and arranging household services.
The Court’s general approach is that, where necessary, it will make a specific decision rather than make a Deputyship Order that gives a deputy full authority to make all decisions affecting a person’s health and welfare.
In rare cases, the Court will make a health and welfare Deputyship Order. This may be appropriate when:
A person suffers from a progressive illness or profound learning disabilities, and requires a series of medical decisions to be made on their behalf over a long period of time.
There is a risk of a serious dispute in the person’s family regarding what is in a person’s best interests.
There is a risk that a person may be at risk of serious harm if decisions are made by family members.
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