Volume 2

Draft Mental Incapacity Bill / presented to Parliament by the Secretary of State for Constitutional Affairs.

  • Great Britain. Department for Constitutional Affairs.
Date:
2003
Catalogue details

Licence: Open Government Licence

Credit: Draft Mental Incapacity Bill / presented to Parliament by the Secretary of State for Constitutional Affairs. Source: Wellcome Collection.

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    In this situation, while he still has full mental capacity, Ronald could create an LPA. This would mean that he could appoint a person of his choice, such as Gina, to make welfare (including healthcare) and/or financial decisions on his behalf in the event of him losing mental capacity. If Gina were appointed she would be able to take decisions and act for her father in accordance with the best interests test. Gina can then take decisions on behalf of her father when he is not well enough to make them himself. Gina would ultimately have the final say in all the decisions, when her father lacked capacity to make them himself. She would be expected to reach her decision after talking things through with all the relevant people, for instance the rest of the family and medical professionals, using her own close knowledge of her father and also after trying to establish her father’s views and feelings. Court appointed deputies The Bill also creates a system of court-appointed deputies to replace and extend the current system of receiverships in the Court of Protection. As with LPAs, deputies will be able to take decisions on welfare (including healthcare) decisions as well as financial matters. A deputy could be appointed by the Court where someone has not made, or has never been able to make, an LPA. We envisage that appointments are most likely to be made to deal with financial matters in a similar way to the appointment of receivers at present. For example Femi, who lost capacity very suddenly due to a head injury Sustained in a car crash, could have a deputy appointed by the court to help him manage the large sum of compensation he received after the accident. There may also be situations where someone would like to apply to the Court to become a deputy in order to gain recognised authority to make welfare decisions. The Court will have to consider whether the person has capacity to make their own decisions and will only appoint a deputy for those matters where the person lacks capacity. The deputy will have to act according to the Court order and if the person regains capacity for particular decisions the deputy will lose his authority to make those decisions. The principle of considering the best interests of the person concerned will govern both the Court appointment of the deputy and the on-going role of deputy. Single Orders of the Court It may be the case that on-going formal decision making powers are never necessary to provide care for a person who lacks capacity but one particularly difficult decision arises whereby a formal decision is necessary. This could be, for example, authorising the closure of a National Savings Bank Account or deciding a difficult issue with regard to contact where family relationships 1