How to help a family member who lacks mental capacity

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If a person hasn’t appointed a lasting power of attorney when they have full mental capacity, and if their ability to make decisions is later compromised, then the next of kin must apply to become a deputy.

It can be heartbreaking, stressful and exhausting when you are caring for a loved one who does not have the ability to make decisions for themselves.

Whether through a brain injury, a mental illness, a stroke, a form of neurodegenerative disease like the Alzheimer’s or some other forms of dementia, a person who lacks mental capacity may not be able to make important decisions affecting their financial affairs, healthcare or wellbeing.

In some cases, a person’s mental capacity may improve or return over time; in other cases their condition is permanent. A person’s mental capacity may also fluctuate: being capable of independent decision making for some periods but losing that ability at other times.

In the eyes of the law (under the Mental Capacity Act Code of Practice), a person is unable to make a decision if they can’t:

  • Understand the information relevant to the decision
  • Retain that information
  • Use or weigh up that information as part of the process of making the decision

In these difficult situations, a trusted relative who acts in the best interests of the person lacking mental capacity usually steps in to apply for deputyship.

Acting on someone else’s behalf

Spouses, parents or next of kin often assume that they automatically have the right to act on behalf of their loved one should they suddenly lose mental capacity, but this is not the case at all. The only exception is when the person has appointed you as their lasting power of attorney previously.

If no lasting power of attorney is in place, then regardless of your relationship with the affected person, you must first apply to the Court of Protection (COP) in order to gain authority as a deputy to make decisions regarding their finances, property, health and care when they are unable to.

Although a deputy is normally a family member or someone who already knows the person well, the COP can also appoint a professional deputy to undertake these duties.

It is also possible for two or more persons to act as deputy for the same client. Here, deputies can choose to work together or independently, perhaps splitting their responsibilities according to time or specific areas of the person’s life.

Applying to become a deputy

In England and Wales, you can apply online to become a deputy through the Court of Protection (COP).

There are two categories of deputy you can apply for:

  • Property & Affairs: dealing with finances, bills, assets, pensions, etc.
  • Health & Welfare: dealing with medical treatment, care provision etc.

You may apply to become a deputy in one or both of these categories, although your application for each will be considered separately.

Completing the application

As part of the application, the COP will need to see evidence of a formal assessment of the client’s mental capacity, typically made by doctors or medical professionals treating them. You will also need to provide supporting information regarding their financial affairs, property and assets, and welfare provision.

There are also several fees involved:

  • £365 for each type of deputy.
  • £485 if the court decides your case needs a hearing.
  • £100 assessment fee for each new deputy.

Subsequently, after a deputy is appointed by the court, there is an annual supervision fee depending on the level of supervision your deputyship needs. In general:

  • £320 for general supervision.
  • £35 for minimal supervision – this applies to some property and affairs deputies managing a budget which is less than £21,000.

Although the application process normally takes several months, emergency and interim orders can be arranged (usually within around 24 hours) in situations where you need to make important decisions on behalf of the person lacking mental capacity.

Security bonds

If you’ve applied to be a property & affairs deputy, the size of the person’s estate and the nature of access you request to it will require you to pay a security bond before your application is approved. This bond acts to protect the person against any financial loss incurred should you ever mishandle their estate and financial affairs. The bond is typically set up and paid through bond company approved and suggested by the COP as part of the application process.

Conformation of your deputyship

If your application is successful, you will be issued with a deputy court order. This acts as official confirmation that you have the authority to act and make decisions on the named person’s behalf and specifies in which areas you can do so.

The Office of Public Guardian (OPG) will assign you a Case Manager who will arrange to have a ‘Settling in” phone call with you shortly after you receive the deputy court order. You can discuss the terms of your order, the person’s financial situation and/or health & care needs. You can also seek advice on how to act in the person’s best interest, along with any other issues or concerns you may want to address.

Take the time to read, check and familiarise yourself with the deputy court order. If you believe it contains inaccuracies or errors, contact the COP immediately and discuss any uncertainties or concerns with your case manager.

Registering your deputyship

You can make certified copies of the court order at any solicitors’ office, or request extra copies from the COP at £5 per copy. These certified copies can be sent to relevant organisations and companies as proof that you are now acting as deputy on behalf of the person.

Think about all the different scenarios you may need to act on behalf of the client. Property & affairs deputies should register their deputyship with the client’s bank(s), insurance companies, Department of Work & Pensions (DWP), pension providers, solicitors and so on. Health & welfare deputies need to register their deputyship with the person’s GP, care providers, therapists and social workers.

Register your deputyship means your details will be on file and when you need to make decisions, they know that you can legally act on behalf of the person.

Fulfilling your role as a deputy

You may well feel daunted by your new responsibilities. You understand that you are expected to take due care and attention in making decisions, and know you can only be seen to be acting in their best interests.

The 2005 Mental Capacity Act sets out five points that should inform your approach to your role as a deputy:

1. Involve the person in decision making

Only make decisions on the person’s behalf when it can be shown that they are not able to make decisions independently when the decision needs to be made. As such, you should encourage them to contribute to decision-making as much as possible.

Beware that sometimes the person’s mental capacity can fluctuate – they may be periods when they are able to make decisions independently, or at least contribute towards them.

2. Support the person in making decisions

Provide as much support as possible to enable them to make decisions. This might involve engaging them at a certain time of day when they are more alert and coherent, or in certain locations where they feel more comfortable and relaxed. You may need to allow them more time, spreading the decision-making process over a number of sessions. Try using alternative ways (like illustrations or sign language) to communicate.

3. Respecting the person’s decisions

Do not assume that the person is unable to make a decision just because you feel their choices are unwise. If the client has the mental capacity to make a decision (i.e. they can understand the information presented, can assess relative pros and cons, can communicate their preferences with enough clarity etc.), their decisions should be respected.

4. Only act in their best interests

The law is clear, the decisions that you (as a deputy) make for the person must be in their best interests. Consider and respect the person’s personal beliefs, values and attitudes. Seek to accommodate any wishes and desires they may have expressed previously, even if they conflict with your own.

5. Protect the person’s basic rights

Check your actions and decisions are not restricting the basic freedoms and rights of the person.

There will be situations where health & welfare deputies do not have the responsibility or authority to make decisions. Certain decisions regarding the person’s treatment and care will ultimately be made by certain medical professionals or authorities. In such situations, the person and yourself will be consulted and your opinions considered. Should you disagree with their professional decision, an appeal to the Court of Protection may force the decision to be reviewed.

The person’s care plan

Many people with a compromised mental capacity have some sort of care plan. This is effectively an agreement between the person and the local authority or social services, setting out the level and nature of care and support they can expect to receive. The plan will include such areas as their medication, therapies and treatments, and social care support. As their deputy, you can expect to be involved in the original drafting of the plan and any subsequent reviews, contributing on behalf of the person as and when they are unable to.

As the plan is drawn up or reviewed, you will have the opportunity to suggest amendments and have your comments or concerns recorded as part of the plan. However, although other parties will listen to your input and will typically try to accommodate your suggestions, as a deputy, you do not have sole authority to change a care plan.

Care Plans are reviewed and updated from time to time, so always ensure you have a copy of the latest version.

Keeping track of everything

As a deputy, you should have a good overall understanding of the person’s financial and/or healthcare situation and will need to report details of the decisions and actions you were involved in.

A property and affairs deputy will need access to the person’s assets and accounts in order to develop a good overall understanding, pay any outstanding debts or bills the person has, cancel standing orders or other expenses if they are no longer necessary or relevant, and sell assets or make new investments that benefit the person.

Unless you already have a joint account with the person, it may be helpful to open a bank account separate to your own. This will make things simpler when keeping a record of transactions. Indeed, you now have a duty to keep a reliable record of any financial transactions and decisions made, the reasons and information informing those decisions, and who/where you sought advice. You will need to outline this information as part of the deputy’s report you are obliged to make each year, so keep hold of receipts, invoices, statements as well as your own notes.

In the same way, health & welfare deputies should also keep record of decisions made as well as details of any consultants, medical or care professionals that were involved in helping you come to a decision. Although you needn’t record details of minor day-to-day concerns such as individual specific meals, outings or events, you should make note of the more significant decisions you and/or the person make. These might include an overall change in diet, a move into/out of a care home, embarking on a new programme of therapy or treatment, consenting to medical examination or procedure.

Submitting a deputy’s report

You will need to submit a deputy’s report online, typically at the end of each year you are acting as deputy. You will be sent reminders to help you meet the deadline. Submitted online, the report can be updated gradually throughout the year to help you avoid any last minute rush to complete it.

If you are a Health & Welfare deputy, you will need to record details of any significant decisions you have made regarding the person’s physical and/or mental health treatment and care provision. This can include such areas as dental care, immunisations and therapy programmes. You should include details of the information and data that helped form your decisions, and list any organisations, or individual health or care professionals consulted during the decision-making process. You should also outline the degree to which the person was able to be involved in making these decisions.

Likewise, property and affairs deputies should include details of any significant financial decisions made, again outlining the reasons and information that informed your decisions and the extent to which the person was able to contribute to the decision making (if at all). You will also need to provide explicit details of the current value of the person’s assets and any payments/transactions you made on their behalf.

Find support when you need it

The deputyship application is long and requires information from various sources, and taking on the duties as a deputy can also feel daunting and stressful at times. This is where our solicitors can make a difference.

At Romain Coleman, we’re leading solicitors in East London looking after clients who have a neurodegenerative disease like the Alzheimer’s or some other forms of dementia. We help them to put their legal and financial affairs in order when they have mental capacity – doing so would give them peace of mind and help the next of kin to avoid the deputyship process. In the event that your loved one has lost mental capacity suddenly and hasn’t had the opportunity to sort out the affairs before the incident, we are here to help you with the process of deputyship.

Contact our experienced team of solicitors today on 0208 520 4555 or complete our online form.

This post is not legal advice and should not replace professional advice tailored to your specific circumstances. It is intended to provide information of general interest about current legal issues.

Relevant articles:

  • What is a deputy?
  • Planning your financial and legal future when you have Alzheimer’s
  • Where to get legal advice for the elderly and vulnerable
  • How to protect relatives with dementia from financial fraud or financial abuse

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