Mental capacity news

 

DNA testing and the Court of Protection

The recent case of DCC v NHL [2019] EWCOP9 considered an application by a local authority for an order permitting a DNA sample to be taken from NHL to assist with DNA testing.

The application for the DNA sample to be taken was not contested. However, the case contains some important reminders for practitioners, carers and those taking samples where the patient lacks capacity and an application has been made to the Court of Protection authorising the taking of a sample.

DCC v NHL [2019] EWCOP9 - the case

NHL was suffering in the late stages of a genetic degenerative neurological condition known as Prion disease. A Judge in the Family Court had declared the outcome of DNA tests would be of vital importance in the resolution of proceedings to establish the paternity of a child and because there was a possibility that the child may have inherited the disease from NHL.NHL had previously indicated to a social worker that a paternity test should be undertaken so that the child could be made aware that they may have inherited the disease and would therefore have the opportunity to decide whether to undergo genetic testing.

The application was listed for a hearing but NHL’s condition deteriorated rapidly and an urgent out of hours application was made. However, before the order was made, it emerged that the DNA testing company had already visited NHL and had taken the DNA sample with the agreement of NHL’s family. However, the sample had been taken without the formal consent of NHL or approval of the court.

The Court’s decision

The Judge was satisfied that approval should be given for the taking of the DNA sample and made an order retrospectively authorising the taking of the sample. The Judge did not feel any injustice or harm had occurred in taking the DNA sample. However, the Court made the following points as a reminder of the correct procedure when an adult lacks capacity to give their consent for a DNA sample to be taken:

  • Where the patient lacks capacity, an application has to be made to the Court of Protection for an order authorising the taking of a sample. It will be unlawful for the sample to be taken without the Court’s permission.
  • There is always a Judge of the Family Division available to sit in the Court of Protection to deal with urgent applications, usually be telephone, twenty four hours a day, seven days a week, every day of the year.
  • There is no excuse for failure to comply with the obligation to obtain the Court’s permission.
  • Any infringement in future will run the risk of not only attracting the Court’s severe criticism but also potentially incurring liability for damages if a breach of human rights occurred.

How can Boyes Turner help?

Our specialist Court of Protection team has a wealth of experience in supporting individuals who lack capacity and their families.

For more information on deputyship and how we can help please contact our Court of Protection team by email on cop@boyestuner.com

Who should be appointed Deputy?

The recent case of NKR v The Thomson Snell and Passmore Trust Corporation Ltd [2019] EWCOP 15 concerned an application to the Court of Protection for the discharge of the appointment of an existing professional property and affairs deputy and the appointment of another instead. The discharge of the existing deputy was agreed but there was an issue as to who should be appointed instead.

Background 

MBR was 12 years old and sustained cerebral palsy as a result of medical negligence shortly after his birth. MBR had received a significant personal injury award of damages and in anticipation of the award, a property and affairs deputy (Wrigleys Trust Ltd) was appointed in 2012. However, difficulties arose and MBR’s mother made an application to the Court for the deputy’s discharge and her own appointment as deputy instead. Ultimately, the Wrigley Trust Ltd appointment was discharged and the Thomson Snell and Passmore Trust Corporation Ltd appointed as deputy in 2017.

MBR’s mother made a further application to the Court in 2018 for the replacement deputy’s discharge and her own appointment as deputy but this time a joint appointment with Ms Sood who described herself as a “Direct Access Barrister.”

The deputy agreed that the relationship with MBR’s parents had broken down “to such a degree that we no longer believe that we are able to act in MBR’s best interests.” However, given various concerns around MBR’S finances, the deputy felt that a suitably qualified and experienced professional deputy should be appointed in their place.

The application went to a Dispute Resolution Hearing.

As a result of the hearing, it was agreed that MBR’s mother no longer sought her own appointment as deputy but no agreement was reached as to who should be appointed as replacement deputy. MBR’s mother wished for Ms Sood to be appointed and her second choice was a particular panel deputy, Mr Kambi. These preferences were based on MBR’s mother considering they had a good understanding of the family’s cultural and religious beliefs. The deputy preferred the appointment of Mr Kambi rather than Ms Sood due to his experience. Therefore, the Court was left to consider whether Ms Sood or Mr Kambi should be appointed as deputy.

Directions were made for further evidence and statements. The matter was then referred to the judge for consideration on the papers.

The Court’s decision

The Court must be satisfied that the person whose appointment is under consideration is capable of discharging the responsibility properly.

In the earlier case of Re AS; SH v LC [2012] MHLO 113 (COP) Senior Judge Lush set out “generally speaking” an order for preference of candidates for appointment as deputy. In this order for preference, a panel deputy is included “as deputy of last resort” after a “professional adviser, such as the family’s solicitor or accountant.”

The judge was not aware of any previous appointments of a barrister as professional deputy. Based on the information presented, the judge was willing to accept Ms Sood was personally and professionally a suitable person to hold a deputyship. However, the judge also had to consider the alternate option identified in this case, the panel deputy, Mr Kambi.

The breakdown of two deputyships demonstrated this was a particularly challenging deputyship and the concerns of the current deputy appeared well founded.

Ms Sood had not confirmed her approach to the cost of insurance and the judge was concerned about the likely extra financial burden to MBR.

Taking into account all matters, the judge decided it was in MBR’s best interests for the panel deputy to be appointed as replacement deputy.

Do we still need professional deputies?

Whilst it is a true that you don’t have to have a professional deputy, no two cases are the same and sometimes there is no one willing to be deputy or able to do it.

If an individual has been injured and is making or has made a personal injury claim for compensation then there is a strong case for having a professional deputy. In fact, the Court is likely to insist on a professional deputy where there is or is likely to be substantial assets as the Court wants to be satisfied that money will be managed properly and that decisions are made in the individual’s best interests. The role of deputy can be onerous and involve dealing with complicated matters. A good professional deputy will work with you to make life easier. Professional deputies are experienced in handing large sums of money and dealing with the complex and often sensitive issues that arise from sustaining such an injury, for example purchasing and adapting a property and putting in place a care team, both during the claim and in the years that follow.

For more information on professional deputyship and how we can help please contact our Court of Protection team by email on cop@boyestuner.com.

Can a deputy withhold information about the size of a Personal Injury damages award?

The recent case of Re EXB v FDZ [2018] EWHC 3456 (QB) answers the question as to whether a deputy can withhold information about the size of a PI damages award from the claimant in his best interests.

Background

The High Court was asked to approve a settlement of a personal injury damages claim because the claimant (Peter) had sustained a brain injury in a car accident and was a protected party.

Peter who is in his 20’s, retained virtually a full life expectancy and the settlement was a significant sum.

The Court was also asked to make an order preventing the disclosure of the amount of the settlement to Peter as knowing the size of the award was not felt to be in his best interests.

Peter’s mother and deputy were concerned that should he know the size of the award, that this would diminish rapidly and there would be insufficient funds left to meet his support needs.

Peter’s friends were involved in criminal activity including drug taking. As well as the concerns of Peter’s mother and deputy, treating professionals were concerned about him knowing the size of the award given that he was vulnerable, impressionable and unable to control his impulses, in particular to spend money.

Peter himself said that it was better he did not know the size of the award although his views on this were not consistent.

From the deputy’s perspective, it would be hard to maintain a good relationship with Peter if he was seen as refusing to disclose the size of the award rather than presenting it as something he had to comply with as it had been ordered by the Court.

The Court’s decision

The judge sat as a judge of both the Queen’s Bench Division and the Court of Protection.

Due to his brain damage, Peter was unlikely to have capacity in the future.

The judge held that it was in Peter’s best interests for the deputy to withhold information about the size of the damages award. Overwhelming evidence showed that knowing the exact amount of the award would lead him to treat the settlement as a lottery win. Given Peter’s vulnerabilities, knowledge of his award, might lead to pressure from others to spend or give away money recklessly and impulsively.

It would be for Peter’s deputy to draw the attention of the order to anyone he knows has knowledge of the settlement amount. An injunction preventing any person who knew the size of Peter’s settlement from disclosing that to him would not be appropriate. It is not clear how this will be policed or how any breach would be dealt with.

What next?

This appears to be the first instance where information about the size of a damages award has been withheld from a claimant in their best interests by order of the Court.

It will be interesting to see whether any similar orders are made in the future. Potentially, a similar order could be made to the trustees of a Personal Injury Trust.

The judgment has been sent to others including the Vice-President of the Court of Protection so that they can consider whether any consultation on this issue is required and whether any action needs to be taken as a result.

For more information on Deputyships and Personal Injury Trusts and how we can help please contact our Court of Protection team by email on cop@boyestuner.com

Do you need capacity to use the internet and social media?

There has certainly been a rise and development of the internet and social media over recent years. This has changed the way in which we communicate with each other. Electronic devices such mobile phones are now used across the world for communication, entertainment, education, relaxation and for gathering information. There are an ever growing number of social media apps.

Arguably the internet and social media are even more important to people who have a disability and or difficulties with social communication. However, the internet can be a dark place with illegal material readily accessible. Internet abuse is common place and can take many forms including bullying, sexual grooming and personal identity theft.

In the recently reported case of Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP2, the Court of Protection sets out the information P must be able to understand, retain, use and weigh up to have capacity to access the internet and social media safely.

Background:

P is a young adult and identifies as a gay man. P had learning difficulties with low levels of literacy. He resided in a supported living placement where he received extensive support. Without support, P would be unable to manage his personal and domestic care needs.

What was the case about?

Court of Protection proceedings had been instigated by the local authority when concerns emerged about P’s capacity to make decisions about his residence, care, contact with others and internet use.

Concerns had been raised about P’s internet use. He had shared intimate photos with unknown men on social media and had accessed extreme pornography and images of child abuse. P had also made contact with sex offenders. The police were concerned P could commit offences of unlawful distribution of images due to his lack of understanding. Practical steps had been taken to help P understand the issues, without success.

The Court’s decision:

The Court was asked to consider whether it was in P’s best interests to restrict his use of the internet and social media.

In assessing whether P had capacity to weigh up the risk involved, the judge applied the criteria set at section 3(1)(a) of the Mental Capacity Act 2005.

The judgment sets out the relevant information which P needs to be able to understand, retain, use and weigh. For example:

“i) information and image s(including videos) which you share on the internet or through social media could be shared more widely, including with people you don’t know, without you knowing or being able to stop it”

The issue of whether someone had capacity to engage in social media for the purposes of online contact should be considered separately from any consideration of who that person should have contact with generally. However, when assessing capacity to access the internet safely there should be a universal test covering use of the internet to contact others as well as using the internet for other purposes such as entertainment or education.

Having considered the evidence available, the judge was satisfied that P did not have capacity to use the internet or social media. This is not just ‘unwise’ behaviour. As a result, the Court approved the local authority’s plan for P to have limited access, under a degree of supervision, to the internet.

On the other issues, the judge decided that P had capacity to decide on his residence and consent to sexual relations but that he lacks capacity to litigate, in relation to his care and support package and contact, and in the management of his property and finances.

What if I have concerns about a vulnerable person?

Although this case concerns a young adult, the criteria for accessing the internet and social media safely will be relevant to other vulnerable groups including the elderly.

Our specialist Court of Protection team has a wealth of experience in supporting individuals who lack capacity and their families.

If you have any queries or questions about capacity and deputyship please contact our Court of Protection team by email on cop@boyestuner.com

The basics of the Mental Capacity Act

What is the Mental Capacity Act?

Mental capacity is the ability to make decisions for yourself.

The Mental Capacity Act (MCA) 2005 is a law in England and Wales designed to protect and empower people who may lack the mental capacity to make their own decisions. It applies to people aged 16 and over. There is a Code of Practice which provides additional information about how the MCA works in practice.

Examples of people who may lack capacity include those with:

  • A stroke or brain injury
  • A mental health illness
  • Dementia

Just because a person may have one of the conditions mentioned above, it does not mean they lack capacity to make a specific decision.

Someone can lack capacity to make some decisions, for example a complex financial decision, but still have capacity to make other decisions, for example to purchase small items of personal expenditure.

The five key principles

The MCA is underpinned by five key principles.

  1. Every adult has the right to make decisions for themselves. It must be assumed that they are able to make their own decisions, unless it has been shown otherwise.
  2. Every adult has the right to be supported to make their own decisions. All reasonable help and support should be given to assist a person to make their own decisions and communicate those decisions, before it can be assumed that they have lost capacity.
  3. Every adult has the right to make decisions that may appear to be unwise or eccentric.
  4. If a person lacks capacity, any decisions taken on their behalf must be in their best interests.
  5. If a person lacks capacity, any decisions taken on their behalf must be the option least restrictive to their rights and freedoms.

Principles 1-3 support the process before or at the point of determining whether someone lacks capacity. Once it has been decided that a person lacks capacity, principles 4-5 support the decision making process.

How is mental capacity assessed?

The MCA sets out a 2 stage test of capacity.

  1. Is there an impairment of or disturbance in the functioning of a person’s mind or brain? If so,
  2. Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?

The MCA says a person is unable to make a decision if they cannot do one or more of the following:

  • Understand information given to them that is relevant to the decision they want to make
  • Retain that information long enough to be able to make the decision
  • Weigh up information available to make the decision
  • Communicate their decision by any possible means (verbal and non verbal).

Making decisions

Before deciding that someone lacks capacity to make a particular decision, it is important to take all practical and appropriate steps to enable them to make that decision themselves. These steps must be taken in a way which reflects the person’s individual circumstances and meets their particular needs. For example, what is the best way of presenting information to the person or is there a particular time of day when the person’s understanding is better?

If someone lacks the capacity to make a decision and the decision needs to be made for them, the MCA states the decision must be made in their best interests. It should never be made in the best interests of the person making the decision.

The MCA provides a non-exhaustive checklist to consider when deciding what is in a person’s best interests.

How can we help?

If someone lacks capacity having not made a Lasting Power of Attorney or Enduring Power of Attorney, an application can be made to the Court of Protection for the appointment of a Deputy.

The Court of Protection oversees the operation of the MCA.

Our specialist Court of Protection team has a wealth of experience in supporting individuals who lack capacity and their families.

If you have any queries or questions about the MCA or how to support someone to make their own decisions then please contact our Court of Protection team by email on cop@boyesturner.com.

How do I get care and support from my Local Authority?

The Care Act 2014 now gives local authorities’ a duty to arrange or provide care and support services to those in their area in need of it.

In order to find out who needs assistance from the local authority they are required to carry out a care needs assessment of people who appear to be in need of care and support. This will determine whether they have a need for care and support and if so, will inform what the care package should include.

How do I request an assessment?

You should make contact with your local authority adult social services team to request an assessment. Most authorities will have a dedicated telephone number for assessment requests and some can let you start the process through an online form. You will need to provide some information such as your personal details and medical conditions.

The threshold to carry out an assessment is a low one, a person simply needs to appear to be in need of care and support. It is unlawful for a local authority to refuse to assess someone for any other reason such as their finances or medical condition.

The authority should carry out the assessment in a reasonable timeframe. Some cases may be urgent and require an assessment within a few days whereas others may be less so. We consider anything longer than 6 weeks without good reason to be unreasonable.  

What is an assessment?

This is where a person’s needs for care and support is recorded. It must include:

  • the impact of your needs on your wellbeing (as set out above)
  • the outcomes that you want to achieve in day-to-day life
  • whether the provision of care and support could contribute to achieving the outcomes

The local authority must involve you as much as you want, take into account all of your needs including those that are being met by a carer and also consult with anyone you may identify, such as the carer.

Assessments can take place at a meeting, over the telephone, through an online form, through a paper form or a combination of all of these. However the assessment is carried out the local authority must do so in a way which is appropriate for your needs. It is usually carried out by a social worker but if not it must be someone who is suitably qualified.

Is there an eligibility criteria?

The assessor will then decide whether you meet the eligibility criteria for support. They will go through the below list of outcomes with you:

  1. managing and maintaining nutrition
  2. maintaining personal hygiene
  3. managing toilet needs
  4. being appropriately clothed (including being able to get dressed)
  5. being able to make use of your home safely
  6. maintaining a habitable home environment
  7. developing and maintaining family or other personal relationships
  8. accessing and engaging in work, training, education or volunteering
  9. making use of facilities or services in the local community including public transport, and recreational facilities or services
  10. carrying out any caring responsibilities you have for a child

They will decide whether you are unable to achieve an outcome if you are:

  1. unable to achieve it without assistance
  2. able to achieve it without assistance but doing so causes you significant pain, distress or anxiety
  3. able to achieve it without assistance but doing so endangers or is likely to endanger the health or safety of you, or of others, or
  4. able to achieve it without assistance but take significantly longer than would normally be expected

You meet the eligibility threshold if:

  • you have needs connected with any kind of disability, physical or mental illness; and
  • those needs mean you are unable to achieve two or more required outcomes in the list below, and
  • that results, or is likely to result, in a significant impact on your wellbeing

The local authority will have a duty to meet unmet needs that satisfy the eligibility criteria. However, if a person is not ordinarily resident in the authority’s area or their financial resources are above the financial limit there will be no duty to meet those needs.

How will my eligible needs be met?

The next stage will be the process of identifying how your care or support needs can be met and how much it will cost. This will be recorded in a care plan.

The local authority must take all reasonable steps to involve you and your carers in this process. It should be a very flexible process with everyone involved making suggestions as to how to meet your needs.

What should be in the Care Plan?

The care plan must:

  • Describe what the needs identified in the assessment are;
  • Detail how those needs meet the eligibility criteria
  • Explain which of the needs which the local authority intends to meet and how
  • Set out a personal budget
  • Include advice and information about what can be done to reduce your needs and to prevent or delay them becoming worse
  • If needs are to be met through a direct payment explain the amount and frequency of the payments

How will my needs be met?

The Care Act does not have a set list of the services that should be provided. This is a suggested list:

  • accommodation in a care home or premises of another type;
  • care and support at home or the community;
  • counselling or other types of social work;
  • goods and facilities; and
  • information, advice and advocacy

Once a care plan is in place it must be reviewed regularly to ensure that it is appropriate, there are no changes in your needs and that the funding is adequate.

How can we help?

If you have any concerns or queries regarding care act assessments then contact our specialist team for confidential and friend expert help and advice.

At Boyes Turner, our community care team is experienced in supporting individuals and their families through the legal, administrative and practical challenges that arise in relation to their care and residential arrangements. Our legal experts provide our clients with a range of levels of support, depending on the individual’s needs, from background legal advice and support in achieving appropriate levels of social care to managing local authority and ombudsman complaints or representing the individual and their family in judicial review proceedings. By ensuring that you understand the system and know your rights, we can help you obtain the right social care and support for your family member.

For more information about how we can help you or your family contact the team by phone on 0118 952 7198 or by email at cop@boyesturner.com.

Dementia - planning for the future

What is dementia?

Dementia is caused by a number of diseases that affect the brain. The most common is Alzheimer’s.

Most people associate memory loss with dementia and this is one of the symptoms. Other common symptoms of dementia include changes in mood or behaviour, misplacing things and disorientation to time and place. Different types of dementia affect the brain at different rates and in different ways. Dementia can affect every aspect of a person’s life including dealing with their own property and finances.

Why does dementia matter?

Dementia is one of the greatest challenges faced by society today. One in three people will develop dementia in their lifetime and one in nine people will have caring responsibilities for someone with dementia.

Whilst dementia typically affects people over 65, younger people can get dementia too.

There are currently over 850,000 people in the UK living with dementia. 225,000 people will develop dementia this year – that’s one person every three minutes.

It’s clear from the figures that dementia is a challenge which we have to face; it is not going away.

Planning for the future

Managing day to day money can be difficult for someone living with dementia. For example, a person living with dementia might forget to pay their phone bill or renew their house insurance. Imagine living with dementia and trying to deal with a bank, insurance company or utility company. Without support or understanding from the provider you are in contact with, this can often be upsetting.

Mental capacity is the ability to make decisions. As dementia progresses, the person living with the condition is likely to become unable to make some decisions for themselves.

If a person lacks the mental capacity to make their own decisions then the Mental Capacity Act 2005 is the law in England and Wales that supports these people and outlines who can and should make decisions on that person’s behalf.

If a person is no longer able to make their own decisions, and has not made a Power of Attorney, then an application should be made to the Court of Protection for the appointment of a Deputy.

A Deputy is a person appointed by the Court to manage the affairs of someone who lacks the capacity to manage their own affairs. A Deputy can be a relative or friend of the person who lacks capacity. In some circumstances, it may be appropriate to have a Professional Deputy, for example a solicitor.

How can we help?

It’s clear that there is a lot to think about when supporting a person with dementia who lacks the mental capacity to make their own decisions or might lack capacity in the future to make their own decisions.

Our specialist Court of Protection team has a wealth of experience in supporting individuals who lack capacity and their families either through assisting a lay deputy in making an application to the Court of Protection or in representing the individual as a professional deputy.

If you have any queries or questions about how to support someone to make their own decisions then please contact our Court of Protection team by email on cop@boyesturner.com.

What happens when someone is found to be impersonating a vulnerable person for financial gain?

The recent case of Dudley Metropolitan Borough Council v Hill [2018] EWCOP 35 resulted in the Court making an order for committal to prison after the respondent was found guilty of impersonating P and incurring costs on P’s behalf that he was not authorised to do.

Background

P was a gentleman of 82 years of age living with dementia. P lived at home with support and the local authority was heavily involved in his affairs. During the proceedings, a provisional declaration was made that P lacked capacity and a deputy for property and financial affairs was put in place from January 2018.

What was the case about?

The case concerns an application for the respondent’s committal to prison for breach of certain injunctive orders made on 13 October 2017. The respondent was the son of P.

The respondent had previously been ordered not to contact P, directly or indirectly, or come within 100m of his house. This hearing was to determine whether he had breached those orders.

The respondent did not attend the hearing. As these were committal proceedings, the onus on proving the breach was on the local authority, the applicant.

The Court’s decision

Whilst the Court was not satisfied that some of the breaches had been proven to a criminal standard, it did find the respondent guilty of some of the breaches.

The breaches the respondent was found guilty of were:

  • Visiting P’s house when an injunction was in place
  • Arranging for the order and installation of a BT phone line and broadband without the authority of P and using the equipment at P’s property which meant further visits to P’s house when an injunction was in place.

When the BT order was placed, the caller purported to be P, giving his details including name, address and date of birth. The numbers the BT phone line was used to call were examined and the numbers were found to have links to the respondent – on many occasions it was used to call the respondent’s girlfriend. Therefore, the Court felt certain beyond reasonable doubt that the person who had placed the order with BT was the respondent.

In terms of the BT order, records show this was placed after the appointment of a deputy and therefore, the deputy was the only person with authority to incur place orders or make purchases on behalf of P. The Court found that the respondent had impersonated P in placing the BT order and had also incurred costs on P’s behalf that he was not authorised to do.

The respondent was sentenced to 4 months in prison.

What if I have concerns about a vulnerable person?

If a person is no longer able to manage their own property and financial affairs, and has not made a Power of Attorney, then an application should be made to the Court of Protection for the appointment of a Deputy.

What can be seen from this case is how important it is that the person’s money is properly managed and that decisions are made in the person’s best interests. Our specialist Court of Protection team has a wealth of experience in supporting individuals who lack capacity and their families.

For more information on deputyship and how we can help please contact our Court of Protection team by email on cop@boyesturner.com.

How can we support decision making when someone lacks capacity now or might in the future?

“ There are growing numbers of people in England and Wales, estimated as around 2 million, who may lack capacity to make decisions or themselves because of illness, injury or disability. There are also concerns about variations in quality, consistency and availability of support to facilitate decision making.”

This is where the 2018 NICE Guidelines on Decision Making and Mental Capacity, which was published back in October, becomes an invaluable tool.

The guideline covers decision making in people aged 16 years and over who may lack capacity now or in the future. The guidelines suggest ways to help people make decisions and maximise personal autonomy. They are aimed at health and social care professionals but the guidance can also be used by other professionals who may come into contact with people who lack mental capacity, independent advocates, deputies, family, friends or carers.

The guidelines apply to a range of decisions, from financial matters, day to day living and care. It also includes various recommendations including supporting decision making, best interests decision making, assessing mental capacity, training and support from staff and advance care planning.

How can NICE guidelines help you?

Every effort needs to be made to support people to make decisions when they have the mental capacity to do so and for them to still be the centre of the decision making process when they don’t have the mental capacity to do so, in which case a bests interest decision should be made on their behalf.

The guidelines contain a summary of key points and helpful reminders. The guidelines support the Mental Capacity Act 2005 and its Code of Practice which should be read alongside. They do not cover Deprivation of Liberty Safeguards processes.

What is supported decision making and how do you do it?

Section 1(3) of the Mental Capacity Act sets out that “a person is not to be treated as unable to make a decision unless all practicable steps to help him to so have been taken without success.”

Supporting decision making requires collaboration and trust – you need to understand what is involved in a particular decision, what aspects of the decision making a person may need support with and why. This may involve helping a person with their memory or communication or helping them understand and weigh up the information relevant to a decision.

Providing relevant information is essential in all decision making. All practical and appropriate steps must be taken to support others to make a decision for themselves.

A personalised approach must be taken during the decision making process accounting for any reasonable adjustments and the wide range of factors that can have an impact on a person’s ability to make a decision, for example a person’s physical or mental health, their communication needs, the effects of drugs or other substances or cultural or religious factors.

In terms of communication, it might be appropriate to use pictures, objects or illustrations. Find out from people who know the person well what the best form of communication. It is also helpful to know if there is a particular time of day when it is best to communicate with them.

You should involve significant and trust people in line with the person’s preference. If there is no one then it might be appropriate to involve an advocate.

An example of supported decision making

P lacked the mental capacity to manage his own property and affairs and a Professional Deputy was appointed. P was still able to make some decisions with support and wished to purchase his own property.

We encouraged P to research and identify properties of interest and his family and case manager were actively involved in this in order to support P to fully participate and make decisions. Fatigue was an issue for P so property viewings were arranged later in the day as that time suited him best. Notes were taken during the viewings and revisited with P after the viewings so that he could understand and weigh up the information – for example did he want to live near to a noisy main road - in order to make a decision as to his preferred property.

Once P had made his decision, we negotiated with the agents to secure the property for him and dealt with the property purchase.

How can we help?

It’s clear that there is a lot to think about when supporting an individual who lacks the mental capacity to make their own decision or might lack capacity in the future to make a decision.

Our specialist Court of Protection team has a wealth of experience in supporting individuals who lack capacity and their families.

If you have any queries or questions about how to support someone to make their own decisions then please contact our Court of Protection team by email on cop@boyesturner.com.

Can an office holder act as a Deputy?

The recent case of Re SH [2018] EWCOP 21 answers the question as to whether the Court can or should appoint as Deputy the holder of a specified office or position rather than a named individual.

Background

An application was made by the current holder of the post for the appointment of “The Head of Business Development & Client Finance” of Focus Independent Adult Social Work C.I.C. rather than a named person as property and affairs Deputy for “SH”.

SH was 71 years old and lacked the capacity to manage her own property and affairs. SH had modest assets.

The September 2018 hearing considering the following:

  1. Whether the Court can, or should, appoint as Deputy the holder of a specified office or position (as distinct from a named individual holding such office at the time of the appointment);
  2. If such appointment is made, the effect of any change to the holder of the office on the Deputyship; and
  3. If the Court is minded to appoint the applicant as property and affairs Deputy for SH, whether there should be any specific requirements in the order of appointment in respect of notification to the Court and/or the Office of the Public Guardian of any change to the holder of the office of Head of Business Development and Client Finance at the applicant company.

At the hearing additional background issues were also addressed. Namely:

  1. Whether acting as property and affairs Deputy is within the powers of Focus Independent Adult Social Work C.I.C.; and
  2. The extent of the professional indemnity insurance cover held by Focus Independent Adult Social Work C.I.C. and the Court’s approach to the application in light of any limitations.

The Office of the Public Guardian objected to an appointment of the Head of Business Development & Client Finance without specifying the name of the individual holding such post at the time of the appointment. This was based on concerns that the person initially selected may leave and his/her replacement may not be suitable.

The appointment of a Deputy is a ‘best interest’ decision for the Court – a generic role would deprive the Court of that decision if or when the postholder left. Whilst this could be overcome by returning to the Court if the postholder ceases to hold office, this would have a financial impact to the individual the application concerns.

The Court’s decision

Having considered all of the information available, the Court was satisfied that Focus Independent Adult Social Work C.I.C. was a suitable organisation and that the current holder of the office of Head of Business Development & Client Finance was a suitable person to be appointed as property and affairs Deputy for SH.

The appointment of an office holder continues with successive holders of the office. The Deputyship order specified that the holder of the office of Head of Business Development & Client Finance at the date of appointment was to notify the Office of the Public Guardian if they ceased to hold that post and/or if there is any change to the ability of Focus Independent Adult Social Work C.I.C. to carry out the functions of a Deputyship.

The Court was not satisfied that sufficient professional indemnity insurance cover was in place and a security requirement of £10,000 was set having in mind SH’s known assets, the nature of potential risk and the absence of alternative protection.

Do we still need professional Deputies?

Now we know that the Court is willing to appoint as Deputy the holder of a specified office or position rather than a named individual, as long as certain conditions are met, the question may be asked by some as to whether a professional Deputy is still worth it.

Whilst it is a true that you are not required by law to have a professional Deputy, no two cases are the same and sometimes there is no one willing to be Deputy or able to do it.

If an individual has been injured and is making or has made a personal injury claim for compensation then there is a strong case for having a professional Deputy. In fact, the Court is likely to insist on a professional Deputy where there is or is likely to be substantial assets. The Court wants to be satisfied that money will be managed properly and that decisions are made in the individual’s best interests.

The role of Deputy can be onerous and involve dealing with complicated matters. A good professional Deputy will work with you to make life easier. Professional Deputies are experienced in handing large sums of money and dealing with the complex and often sensitive issues that arise from sustaining an injury which limits a persons capacity, for example purchasing and adapting a property and putting in place a care team, both during the claim and in the years that follow.

For more information on professional deputyship and how we can help please contact our Court of Protection team by email on cop@boyesturner.com

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