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Lasting Powers of Attorney and Court of Protection Deputyships

Rosie Banks, a health and welfare Court of Protection specialist, looks at health and wealth deputyship, what it is and when you might need one.

What is a deputy?

Deputies are appointed by the Court of Protection to make decisions on behalf of an individual who lacks the mental capacity to make those decisions themselves. In Court of Protection proceedings, the individual is often known as “P”, the protected party.

Deputies can be appointed to make decisions about P’s property and affairs or P’s health and welfare. In some cases both types of deputy can be appointed. This article will focus on health and welfare deputyships.

What sort of decisions can a health and welfare deputy make?

Decisions that a health and welfare deputy may be able to make on behalf of P include decisions about P’s day to day care; where and with whom P should live; the treatment that P receives (with some important exceptions); and the authority to make and pursue complaints on P’s behalf.

The law says that deputyships must be as limited in scope and duration as possible. The court will therefore specify which decisions a deputy has authority to make and which s/he doesn’t, depending on P’s individual circumstances.

Some specific issues are always excluded from a health and welfare deputy’s authority, including the authority to refuse consent to the carrying out or continuation of life-sustaining treatment for P and the power to prohibit another person from having contact with P.

Do I need a health and welfare deputyship to make decisions for my family member?

The legal framework governing decision making for an incapacitated person is set out in the Mental Capacity Act 2005 (“the MCA”) and guidance can be found in the Mental Capacity Act Code of Practice (“the Code”).

In accordance with the MCA, decisions about P’s care or treatment can be made for P without there being a deputyship or lasting power of attorney in place, so long as the decision maker reasonably believes that P lacks capacity to make that decision and that the proposed decision or course of action is in P’s best interests.

The MCA and the Code contain guidance around best interest decision making in practice, including the factors to be taken into account and the need to consult those with an interest in P’s welfare, which should ensure that close family members are consulted when important decisions are to be made for P.

If an agreement cannot be reached about P’s best interests in respect of a particular matter, the law states that a decision by the Court is preferable to the appointment of a deputy. An application should therefore be made to the Court to ask the court to decide what is in P’s best interests.

Notwithstanding this preference, the Court does recognise that in some instances it may be in P’s best interests for a deputy to be appointed to have authority to make certain decisions for P. The Code sets out a number of examples where a deputy may be required: including where there will be a series of linked welfare decisions that need to be made over time and it would not be beneficial or appropriate to require all of those decisions to be made by the court; and where there is a history of serious family disputes that could have a detrimental effect on P’s future care unless a deputy is appointed to make necessary decisions.

What do I need to be aware of when acting as deputy?

If you are appointed a health and welfare Deputy, it is important that you continue to act in line with the principles of the MCA and the Code. This means considering whether P has capacity to make a specific decision before you make it on P’s behalf, and consulting both P and other people who are closely involved in P’s care, when making a decision in P’s best interests.

You should keep a record of key decisions made for P and the factors taken into account when making them. You should also consider whether an application should be made to the Court to determine a particular issue in the event of a dispute.

Produced by Rosie Banks of Boyes Turner Solicitors

Rosie Banks is a solicitor at Brain Injury Group member firm Boyes Turner, specialising in health and welfare Court of Protection and community care matters. Amongst other matters, she supports clients to bring applications to the Court of Protection to be appointed health and welfare deputy.

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