Danielle Carter, Associate Solicitor

The next in our series considering capacity issues

12 November 2018

The Mental Capacity Act (‘MCA’) 2005 underpins everything that we, as Court of Protection practitioners do, but what does that mean in practice and most importantly, what does that mean to how we help you as Property and Financial Affairs Deputy?

To strip it back initially, it is important to summarise that the primary purpose of the MCA is to promote and safeguard decision-making within a legal framework, which it does in two ways:

  1. It empowers people to make decisions for themselves wherever possible, and protects people who lack capacity by placing such individuals at the heart of the decision-making process. 
  1. It allows people to plan ahead for a time in the future when they might lack the capacity, for any number (i.e. by creating a lasting power of attorney).

I will be focusing on deputyships in this article and mainly in relation to professional deputy duties.

My colleague’s article discussed incapacity in detail (I encourage you to read this first if you haven’t already) and outlined how there are five key principles enshrined within the Act, but how does this translate to how we – as professionals but indeed relevant to lay deputies - should help our clients?

Whilst I use the term ‘client’ throughout this article, within legislation and case law, a person who lack’s capacity is described in legal parlance (in this area of law) as a ‘protected party’.

I think that this terminology is misleading and could be taken as inferring the focus is to protect the ‘party’ who lacks capacity which would go against the entire purpose of the act.

Whilst it is true that some the five principles lead us to protect, it is equally balanced with the duty on us to empower and a deputy must always ensure that they seek to involve their client.  

In particular, the second principle states that ‘a person must be given all practicable help before anyone treats them as not being able to make their own decisions’. This means you should make every effort to encourage and support people to make the decision for themselves. 

As you can see, even where a lack of capacity is established for the decision in question, it is imperative that you involve the person as far as possible in making decisions.   In fact, to not take all practicable steps to do so could arguably render your decision invalid or unlawful, as you have failed to meet all aspects of the principles of the Act.

Danielle Carter, October 2018.jpg  Danielle Carter, Associate Solicitor

Unfortunately, there is little guidance within both the legislation and the case law on how we should achieve the involvement of the client – in fact, nowhere does it even direct you as to whose responsibility it should be, but a Deputy must ensure they are meeting this obligation.  It is also good practice for a Deputy – whether a professional or a lay deputy – to record how they have involved the client in the decision making process.

This obligation forms part of the Deputy standards and yet a Deputy is ‘restricted’ to only annual visits to their clients. Despite this, the visits should be used as an opportunity to learn more about your client and get an idea of future plans that they may have or goals they wish to achieve, their home life as well as what their wishes and feelings are for the present and future.  

For professional deputies, it is recommended that all such information is carefully recorded in case it is required for future use, particularly helpful if someone’s health deteriorates at a later date or their close family / friends become unable to assist and support your client.

A Deputy must continually work towards striking a balance that allows the client a level of autonomy and independence that they are comfortable with, constantly reviewing things to make sure arrangements are meeting the client’s need and/or goals, particularly as they may change over time.

How you could find out this information will differ from client to client – it could be by phone, email, Skype or face to face visits – or in some cases, via case managers, family/friends where the client cannot communicate as easily via more traditional methods.

In some cases, the client may be unable to communicate in these traditional methods, so it is important to work with third parties, for instance case managers and therapists, to see if this is something that can be overcome with assistive technology. 

You should also seek to ensure that the client is supported by close family or friends, who know them well and can, assist you in unlocking more subtle gestures towards indicating their wishes.

As I am sure you can appreciate, there is not a ‘one size fits all’ approach to how you should work with someone as their Deputy however it is imperative and essential – legally so – that you are always seeking to work with and empower the client.  Remember, it is not about what you think is best, it is working out what works best for your client.

For a free initial discussion on how we could help you / your family member, please feel free to contact us on info@hughjonessolicitors.co.uk or call 0161 871 3680.