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The Court of Protection: An overview for family lawyers

Moira Sofaer, of 1 Mitre Court Buildings, presents an overview of the principles of the Mental Capacity Act 2005 and the Court of Protection.

image of moira sofaer barrister 1 mitre court bulidings

Moira Sofaer, Barrister, 1 Mitre Court Buildings

Last October the Mental Capacity Act (MCA 2005) came into effect as a coherent statutory scheme to provide for those who lack mental capacity aged over 16. The spirit behind it brings the state approach to mental health problems from paternalistic and protective into step with contemporary culture. It provides greater empowerment for the person (P) who chooses or needs to have an alternative decision maker than under any previous legislation.  Provisions are included to give to people help and support to assist them to make their own decisions or increase their participation in decision making when it has to be made by others. The intention is to involve Ps and recognise their individuality while protecting them from abuse, neglect and exploitation.

Alongside the new culture of how P is viewed and treated, the legal system was overhauled for dealing with P’s affairs. The Court of Protection (CoP) was moved away from being an administrative body with clerical officers making most of the decisions by letter and phone. The MCA 2005 gave it the powers of the High Court with formal applications and hearings governed by CoP Rules 2007. It has jurisdiction over the whole of the MCA 2005, and only CoP judges can exercise the court’s powers under the Act. It is now more similar to the Family Division in the way it operates.

Family practitioners need to have a working knowledge of the new court as its satellite powers impinge on family life. Decisions about how to handle P’s finances and welfare go to the heart of how a family works and often need to be made in a period of maximum stress. Predictions about P’s future financial needs, style and quality of life, and Ps personal expectations, which might be unrealistic, have to be considered. Ancillary relief lawyers are familiar with the scene but added into the mix could be a dispute about who is going to be the deputy, formerly known as the receiver, and an argument about control. Knowing how the CoP works, and what factors it takes into account can avoid expensive applications and intractable disputes. It is not surprising the President and Vice President of the Family Division have been appointed to the same positions in the CoP

Two core principles of the MCA are that “a person is assumed to have capacity unless it is established he lacks capacity” and an alternative decision maker must make the decision in P’s” best interests” (Section 1 MCA 2005).

A dispute may begin with an argument as to whether P is incapable. This could become an issue with P fiercely fighting for independence as P struggles to survive in an increasingly unsafe environment or a dispute among relations as to whether P is able to make decisions. The (CoP) is solely empowered to decide whether a person has capacity to make a particular decision for themselves. The philosophy behind the act is to look at the type of decision to be made and offer assistance to P to participate in it. Intervention only takes place  when it is established that P’s inability to make a decision is due to a medical condition that prevents analyzing the information needed to a make a choice  (Section 3 MCA 2005). Those unfortunate enough to have dealt with full senile dementia may think it is obvious when P is incapable.

Questions arise however when sane people make unwise choices, medical treatment brings back the impaired gradually or dementia takes an uneven path. P is then in an undefined zone.  Decision making about care on a day to day level by informal carers can be made without an assessment if the carer has a reasonable belief P lacks capacity. They can provide basic care and treatment and pay for essential good and services where there is no other form of authority in place (Sections 5-8 MC 2005).

The more serious or complex the decision the more formal the assessment of capacity must be.

Situations where capacity is critical for P arise:

In practice a declaration on capacity by the CoP for decision making will protect the delegated decision makers from acting outside their remit because P is capable.  The alternative decision-maker (ADM) that is cheapest and gives P better control is set up when P is capable in anticipation of incapacity. P selects the ADM who is empowered to act for P after P becomes incapable. P can appoint an attorney with an enduring power of attorney (EPA) or, after 2005, appoint a donee under a lasting power of attorney (LPA) made when P has capacity. As the ADM’s authority comes into effect on incapacity a declaration will be needed if there is a dispute or doubt. The CoP has a new power to direct reports from the NHS, the local authority, the public guardian or a CofP visitor to deal with the issue (Section 49 MCA 2005)

If no ADM has been set up by P and one is needed after incapacity on an ongoing basis, an application can be made to appoint a deputy under MCA s16 (formerly referred to as a receiver) who may be a family member or a professional. The decision whether to appoint a deputy and choice of deputy are matters for the Co P. If there is any doubt, uncertainty or conflict it is up to the Court to resolve. The application process is long and the deputy option more bureaucratic and expensive than the EPA/LPA one. Deputies have the disadvantage of not being personally chosen by P when capable and are subject to a higher level of supervision and reporting than adms under EPA/LPAs which have been registered.

The court has an important role in remedying problems with ADMs. Intervention is required when there are disputes about who should be the ADM, whether a decision can be made and how the decision is made for instance dealing with a complaint the ADM is abusing or exceeding their authority.  This can arise from a referral by the Office of the Public Guardian (OPG) responsible for supervising ADMs under EPA/LPAs once they are registered or a whistle blower concerned about P’s best interests

Once it has been established that incapacity brings P within the MCA, all decisions must be made in P’s best interest. (Section 4 MCA 2005) Considerations to determine best interest include P’s past and present wishes, beliefs and values, and factor’s P would consider if able to do so. Others should be consulted (for instance carers) to provide evidence, those with no financial interest in the outcome being more persuasive. Disputes as to what is in P’s best interests for instance should P go into residential care are decided by the Co P
The MCA places the CoP as the decision maker of last resort applications: hearings are costly and cumbersome and can be lead to polarising conflict in dysfunctional families. Hearings to decide what is in P’s best interests can arise from power struggles in families losing sight of P’s needs, or be motivated by self interest, for instance conserving P’s assets for beneficiaries under P’s will. It is an expensive forum. There is no mediation service at the Court as yet, although one is being considered to resolve disputes as to who should be appointed deputy because of the large number of cases listed for hearing in that category.

The work load of the Court is going to increase with longer life expectancy, wider property ownership, the break up of the traditional family and public funding being more widely available. There is a natural overlap with family law in welfare cases which fits neatly into the ethos and skills of family practitioners. Knowing how it operates enables us to provide legal advice from cradle to grave.