Written by Team Farallon | February 25, 2019
The Mental Capacity Act (“the Act”) contains legal rules which deal with what happens when a person – more specifically, a relative or loved one – is 21 years old or above and has lost mental capacity. Such a person is unable to make decisions for himself and therefore needs to have someone appointed to make decisions for him. The Act is of particular relevance in instances where the person who lacks capacity has assets which can be used for his own benefit.
What is Mental Capacity and Who is the Mental Capacity Act for?
The essence of mental capacity is the ability to make decisions. A person can lack mental capacity because of an illness or disability such as a mental health problem, dementia or a learning disability. As a result of this, the person cannot do one or more of the following four things:
The purpose of the Act is to protect those who lack the capacity to make decisions from being taken advantage of.
Who is a Deputy under the (Mental Capacity Act)
A deputy refers to a court-appointed person whose responsibility it is to make certain decisions on behalf of a person who lacks mental capacity when the latter has not made a Lasting Power of Attorney and consequently does not have a donee to make decisions on his behalf.
The deputy is tasked with acting in the best interests of the person on behalf of whom he makes decisions. The scope of his powers is, however, defined by the court order under which they are appointed. Any further orders that the court makes can alter the deputy’s powers.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows someone aged 21 or older to plan the management of his affairs in the event that he loses mental capacity.
The person who makes the LPA is known as a donor and he appoints one or more persons called donees to act and make decisions on his behalf. A donee should, therefore, be someone the donor considers to be reliable, trustworthy and competent to act on his behalf.
When is it Necessary to Appoint a Deputy?
The general requirement for a deputy to be appointed is that there is no LPA. There are therefore a couple of possible circumstances under which the appointment of a deputy might be necessary.
For example, it is desirable to have a deputy in situations involving parents of young children with intellectual disabilities. The parents could be concerned about who would take care of their children in the event that the parents themselves pass away or lose mental capacity. The Act allows the parents of such children who are below the age of 21 to apply to the court to appoint a deputy. The objective here would be to ensure that the child’s future care is arranged.
In addition, a deputy would be desirable where one’s parent suffers from a debilitating illness or is in a coma which will result in high medical and other expenses. The parent’s state of health would render their bank accounts inaccessible and a court order appointing a deputy could allow a deputy to have access to the parent’s bank account in order to cover the expenses.
Who Appoints the Deputy?
The court plays the primary role when it comes to appointing a deputy.
For an adult person, the court may appoint a deputy if the court deems that the person lacks capacity in relation to matters involving his personal welfare or his property and his affairs. For a minor under the age of 21, the court may appoint a deputy if it considers it likely that the child will still lack the capacity to make decisions pertaining to his personal welfare or his property and affairs by the time he reaches the age of 21.
What the Court Considers in Appointing a Deputy
In determining whether or not it should appoint a deputy, the court is likely to consider the following factors:
Usually, the court choses a relative or close friend to be a deputy. In situations where family disputes exist or in cases where elderly sings or childless elderly couples lack mental capacity, the court may choose an independent third party such a professional deputy to become a deputy. Professionals who can be appointed as a professional deputy in terms of the Professional Deputies and Donees Scheme are as follows:
It is worth noting that a court is not likely to appoint a deputy for property and affairs matters unless the person who lacks mental capacity has property or assets that he will become entitled to through an inheritance.
How to Appoint a Deputy
When someone wishes to appoint a deputy for another person, he should apply to the court. It is the person’s responsibility to state what particular decisions the person who lacks capacity is incapable of making and what affairs the deputy should be responsible for i.e. decisions relating to property and affairs and/or personal welfare.
The services of a lawyer are useful when making an application for the court to appoint a deputy. This is because a lawyer’s expertise is necessary in fulfilling court formalities and in arguing the case for the appointment of the deputy.
Upon receiving an application to appoint a deputy, the court considers the factors above in order to decide whether or not it should appoint a deputy. It can appoint more than one deputy either jointly or jointly and severally or jointly on some matters but severally on other matters.
The deputy should agree to being appointed and must agree to act in the best interests of the person who lacks capacity. He also has to be 21 years old or older.
The Process of Appointing a Deputy
There are three main stages in the process of appointing a deputy. In the first stage, an application to the court is made. The second stage involves the court reviewing the application for a deputy to be appointed. Stage three is where the court order granting deputyship is made.
First Stage: Making the Application to Become a Deputy
If someone wishes to apply to become a deputy, he has to file the following documents:
In expanding on each of the above documents, the person lacking capacity will be referred to as “the patient”.
In the originating summons, the applicant must state exactly what powers he seeks and specify the aspects in respect of which the patient lacks the capacity to make decisions.
The supporting affidavit is where the applicant needs to give reasons for the powers he seeks and justify that they are reasonable. For example, he should present supporting documents such as invoices, bank statements and insurance documents showing the patient’s expenses and the value of the patient’s assets over which he wishes to have power.
The doctor’s medical report should be made by a specialist doctor such as a neurologist or a psychiatrist and it should contain the doctor’s opinion on the patient’s mental capacity vis-à-vis the matters specified in the application. It must be dated not older than 6 months before the date on which an applicant makes the application.
If an applicant is likely to predecease the patient, he should consider proposing a successor deputy to take over. The successor deputy would then take over once the applicant passes away.
As regards consents by relevant persons, “relevant persons” are persons who are involved in the patient’s life and are likely to have an interest in the application. The patient’s immediate family members are one category of people who are likely to have an interest in being notified of the application to the court relating to the patient. They would include the patient’s:
Other categories of persons who may be considered to be “relevant persons” are persons who have a close relationship with the patient, persons who have a legal duty to support the patient, persons who will benefit from the patient’s estate and persons who are responsible for the patients care.
It can happen that the patient is closer to persons who are not his immediate family members. In cases like this, such persons should be notified in place of the patient’s immediate family members.
Once all the relevant and required court documents have been prepared, the applicant will need to file them with the Family Justice Court.
Second Stage: Review by the Court
During this stage, the court scrutinizes and assesses the applicant’s case.
It is at this stage that the court may request that further information or documents must be made available to it in the form of a supplementary affidavit. The court could, for example, request an update from the doctors on the patient’s condition. This would inevitably lengthen the deputy appointment process – which generally takes 4 to 6 months.
The applicant receives notification as to when to go to court for the hearing of his application.
Third Stage: Granting the Order
If the application is granted, an order of the court will be granted and signed by the registrar. The applicant will now be a legally appointed deputy with his powers outlined in the court order.
Need help with appointing a deputy under the Mental Capacity Act? Speak to a lawyer at Farallon Law today, and let us help you with your matter.
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