3. The Old Common Law
Patient has capacity
• Treatment required their consent.
Patient lacks capacity
• The clinician was under a duty to give
treatment which was necessary to
preserve the patient’s life, health or
well-being; and was in their best
interests.
3
4. Mental Capacity Act
Patient has capacity
• Treatment requires their consent.
Patient lacks capacity
• The MCA applies whenever you
wish to give care or treatment to
an incapacitated person outside
the Mental Health Act.
4
5. MHA and MCA patients
MHA RULES MCA RULES
Treatment for mental disorder Treatment for mental disorder
• Section 2 patients • Informal patients
• Treatment order patients • Short-term sections
• CTO patients • Guardianship
• Conditional discharge
• Section 35
• Prison medical units
+ Treatment for physical health,
e.g. heart condition
5
7. Who lacks capacity?
For the purposes of the Act, a person lacks
capacity in relation to a matter ‘if at the
material time he is unable to make a
decision for himself in relation to the matter
because of an impairment of, or a
disturbance in the functioning of, the mind
or brain.’ (s.2)
It does not matter whether the impairment
or disturbance is permanent or temporary.
How does this provision affect people suffering from schizophrenia or mania?
Section 27
8. Inability to make decisions
For the purposes of section 2 — The information relevant to a decision includes
When a person lacks capacity to information about the reasonably foreseeable
make a decision for her/himself — a consequences of deciding one way or another,
person is unable to make a decision or failing to make the decision.
for himself if he is unable:
to understand the information
relevant to the decision, The fact that a person is able to retain the
information relevant to a decision for a short
to retain that information, period only does not prevent him from being
to use or weigh that information as regarded as able to make the decision.
part of the process of making the
decision, or
or
A person is not to be treated as unable to make
to communicate his decision a decision merely because he makes an unwise
(whether by talking, using sign decision … BUT
language or any other means).
Section 3 8
;
10. Statutory Principles
The following principles apply for the purposes of the Act:
of
1.
1. A person must be assumed to have capacity unless it is established that he
be to it is he
lacks capacity;
2.
2. A person is not to be treated as unable to make a decision unless all
is to be as to
practicable steps to help him to do so have been taken without success;
to to do so
3.
3. A person is not to be treated as unable to make a decision merely because
is to be as to
he
he makes an unwise decision;
an
4.
4. An
An act done, or decision made, under the Act for or on behalf of a person
or or on of
who lacks capacity must be done, or made, in his best interests;
be or in
5.
5. Before the act is done, or the decision is made, regard must be had to
is or is be to
whether the purpose for which it is needed can be as effectively achieved
it is be a s
in
in a way that is less restrictive of the person’s rights and freedom of action.
is of of
Section 101)
1(
10
11. Best Interests
The person determining what is in the individual’s best interests must consider all the
relevant circumstances and, in particular, must
1. Consider whether it is likely that the person will at some time have capacity in relation to
the matter in question and, if it appears likely that he will, when that is likely to be;
2. So far as reasonably practicable, permit and encourage the person to participate, or to
improve his ability to participate, as fully as possible in any act done for him and any
decision affecting him.
3. Consider, so far as is reasonably ascertainable, the person’s past and present wishes and
feelings (and, in particular, any relevant written statement made by him when he had
capacity); the beliefs and values that would be likely to influence his decision if he had
capacity; and the other factors that he would be likely to consider if he were able to do so.
Section 41
1
11
12. Best Interests (2)
4. Take into account, if it is practicable and appropriate to consult them, the views as to
what would be in the person's best interests and, in particular, as to the matters
mentioned in paragraph (3) immediately above of anyone named by the person as
someone to be consulted on the matter in question or on matters of that kind; anyone
engaged in caring for the person or interested in his welfare; any donee of a lasting
power of attorney granted by the person; and any deputy appointed for the person by the
court.
5. Not be motivated by a desire to bring about his death where the determination relates to
life-sustaining treatment and considering whether the treatment is in the best interests
of the person concerned. (“Life-sustaining treatment” means treatment which in the
view of a person providing health care for the person concerned is necessary to sustain
life.)
Section 42
1
12
16. Advance decisions
DEFINITION OF AN ‘ADVANCE DECISION’
An “Advance decision” is a decision made by an adult
with capacity that if:
(a) at a later time a specified treatment is proposed to
be carried out by a person providing health care, and
(b) at that time he lacks capacity to consent to that
treatment,
the specified treatment is not to be carried out or
continued.
Section 26
14
16
17. When not binding
Person lacked capacity to make it
Person still has capacity, so has not yet kicked in
Person changed their mind when they still had
capacity
It is not the treatment specified
It is not the circumstances specified
Person would not have made it had they
anticipated the current circumstances
17
17
18. Scenario
Mr Smith has suffered from schizophrenia for many
years. He has been detained on a number of occasions.
His consultant prescribes him Impotentox when he is
acutely unwell. This has very unpleasant side-effects
for him. He makes an advance decision refusing the
treatment in the event he becomes incapacitated. A
year later, he relapses and is admitted to hospital
informally. His consultant considers that he requires a
course of Impotentox. What is the legal position?
18
18
19. Scenario
When Joan Moses was four months pregnant, she made an
advance decision stating that (a) she was not to have a
Caesarean section to in any circumstances, whatever the risk
to herself or her baby; (b) this prohibition was to apply if she
became incapacitated during birth for any reason. The doctors
want to perform a Caesarean, failing which the baby is likely
to die. Joan refuses to have the operation because of her
needle phobia.
Are the doctors bound by the advance decision?
19
19
20. Scenario
When Joan Moses was four months pregnant, she made an
advance decision stating that she was not to have any
treatments or interventions during childbirth other than
natural, herbal, treatments. The birth was to be at home, and
she was not to be removed to hospital whatever the
circumstances. Her midwife believes that the baby is likely to
die unless s/he is removed to hospital for emergency
treatment.
Is the advance decision binding?
20
20
22. Lasting Power of Attorney
A lasting power of attorney is a power of
of is of
attorney under which the donor ("P") confers on
on
a donee or donees authority to make decisions
or to
about all or any of the following:
or of
P’s personal welfare or specified matters
or
concerning P's personal welfare, and
LPA
Personal Welfare
P’s property and affairs or specified matters
or
concerning P's property and affairs,
Property
Affairs
and which includes authority to make such
to
decisions in circumstances where P no longer
in no
has capacity.
Section 92
2
22
23. Scenario
Mr Jones has a long history of schizophrenia and many
negative symptoms. He makes a lasting power of attorney,
authorising his friend Emma to make personal welfare
decisions for him should he become incapacitated. A year
later, he is admitted to hospital informally and accepts
treatment without really understanding what it is for. It is
common ground that he is now incapacitated and Emma
refuses her consent to him being given Impotentox.
What is the legal position?
23
23
24. Scenario
Mr Jones has a long history of schizophrenia and many
negative symptoms. He makes a lasting power of attorney,
authorising his friend Emma to make personal welfare
decisions for him should he become incapacitated. A year
later, he relapses and is admitted to hospital, but refuses
Impotentox. His consultant and Emma take the view that he
is now incapacitated. She consents to him being given
Impotentox, if necessary using restraint.
What is the legal position?
24
24
25. Scenario
A Mental Health Review Tribunal is reviewing the case of Mr Jones, a patient detained under
section 2.
Some time ago, when he had been relatively well for some time and had the necessary capacity, he
executed a Lasting Power of Attorney, appointing his spouse as his donee.
When his mental state deteriorated recently, and he was considered to lack capacity to consent to
treatment, his spouse refused to consent to the administration of any antipsychotic medication. This
resulted in him being sectioned.
Mr Jones doesn’t really understand his legal rights. However, he is compliant with treatment and it
has not been necessary to give him medication by force. He says that he is willing to remain in
hospital for the time being.
Mrs Jones tells the professional preparing the social circumstances report that she is now willing to
consent to one antipsychotic being administered for four weeks but at a lower dosage than currently
prescribed. She is also willing for him to remain in hospital for another week or so, while she
prepares his flat and after-care is arranged, at which point she thinks that he will be ready to be
discharged.
What is the legal position?
25
25
26. Scenario
Mr Jones is a restricted patient with a long history of schizophrenia. Some years ago,
he made a lasting power of attorney, authorising his sister, Pamela, to make decisions
about his care and treatment should he become incapacitated. Then and now, he
appears (a) to have capacity to appoint someone to make personal welfare decisions on
his behalf but (b) to lack capacity to consent to the medication and treatment being
prescribed for him. He continues to believe that the neighbour he killed was interfering
with him and threatening him, and that he was acting in self-defence.
A tribunal is reviewing his case and is minded to discharge him subject to conditions
that he resides at Homecare Hostel, attends appointments with his consultant and
supervisor as required, and takes medication as prescribed.
The tribunal’s only significant concern is the effect of the LPA. Pamela is very coy
about reserving her future “rights to consent or not to aspects of the treatment being
proposed. I think he might be better off living on his own.”
What is the legal position?
26
26
28. Personal Welfare LPAs
LPAs can be used to appoint attorneys to make decisions about
personal welfare, which can include healthcare and medical
treatment decisions. Personal welfare LPAs might include
decisions about:
—where the donor should live and who they should live with
—the donor’s day-to-day care, including diet and dress
—who the donor may have contact with
—consenting to or refusing medical examination and treatment
—arrangements needed for medical, dental or optical treatment
—assessments for and provision of community care services
—participation in social activities, leisure activities, education or training
—the donor’s personal correspondence and papers
—rights of access to personal information about the donor
—complaints about the donor’s care or treatment
28
28
29. Personal Welfare LPAs
Donors can add restrictions or conditions to areas where
they would not wish the attorney to have the power to act.
For example, a donor might only want an attorney to
make decisions about their social care and not their
healthcare.
Before making a decision under a personal welfare LPA,
the attorney must be sure that:
• the LPA has been registered with the OPG;
• the donor lacks the capacity to make the particular
decision or the attorney reasonably believes that the
donor lacks capacity to take the decisions covered by the
LPA (having applied the Act’s principles), and
• they are making the decision in the donor’s best
interests.
29
29
30. Personal Welfare LPAs
LPAs and Advance decisions
If the donor made an LPA after the advance
decision, and gave the attorney the right to
consent to or refuse the treatment, the attorney can
choose not to follow the advance decision.
Life-sustaining treatment
An attorney has no power to consent to or refuse
life-sustaining treatment, unless the LPA
document expressly authorises this.
Treatment under the Mental Health Act
ECT aside, an attorney cannot consent to or refuse
treatment for a mental disorder for a patient
detained under the Mental Health Act 1983.
30
30
32. Legal formalities
The LPA must be a written document set out in the prescribed statutory form.
The document must include prescribed information about the nature and effect of
the LPA (as set out in the regulations).
The donor must sign a statement saying that they have read the prescribed
information and that they want the LPA to apply when they no longer have
capacity.
The document must name people (not any of the attorneys) who should be told of
any application to register the LPA, or should say that there is no-one they wish
to b e tol d.
The attorneys must sign a statement saying that they have read the prescribed
information and understand their duties, e.g. to act in the donor’s best interests
The document must include a certificate completed by an independent third
party, confirming that, in their opinion, the donor understands the LPA’s
purpose; nobody used fraud or undue pressure to trick or force the donor into
making the LPA; and there is nothing to stop the LPA being created
32
32
33. Personal Welfare LPA Form
The Donor completes Part A of
the form
An independent person must
complete Part B, confirming
that, in their opinion, the
donor is making the LPA of
their own free will, and
understands its purpose and
the powers they are giving the
attorney(s)
Each Attorney must complete
Part C
33
33
34. Personal Welfare LPA (2)
Donors are advised to
name up to five people to
be notified of any
application to register
t h e L PA .
Once notified, if any of
the named people have
concerns about the
registration – for
example they feel that
the donor was put under
pressure to make it –
they can object to the
LPA being registered.
34
34
35. Personal Welfare LPA (3)
None of the following
pe r s o ns m a y b e a
Certificate Provider:
— A f a m i ly m e m b e r o f
t h e d o no r o r o f a n
Attorney
— A b u s i n es s p a r t n e r o r
p a i d e m p l o ye e o f t h e
d o n o r o r a n A t t o rn e y
a n y A t t o rn e y ,
including of another
L PA o r E PA
— An owner, director,
manager, or employee
o f a c ar e h o m e i n wh i c h
t h e d o n o r l i v es , o r a
m e m b er o f t h e i r f a m i l y
35
35
37. Types of appointment
Attorneys can be appointed to act:
Jointly, which means that none of them E x a m pl e s
can act independently; or The donor may want both of
Jointly and severally, which means that their attorneys to act together
they may all act together, or one of them in relation to the sale of their
can act independently; or property but want them to act
independently (on their own)
Jointly in respect of some matters and when managing their bank
jointly and severally in respect of others. accounts.
If a donor who has appointed two or more Similarly, a donor may
attorneys does not specify how they appoint welfare attorneys to
should act, they must always act act jointly and severally but
jointly. specify that they must act
Donors cannot give their attorneys the jointly in relation to giving
right to appoint a substitute or successor. consent to surgery.
But may name replacement attorneys. 37
37
38. Registering an LPA: The basics
The LPA is made when it has been completed and signed by all
is it by
those who are required to sign.
to
An
An LPA can be registered at any time after it is made but cannot
be at it is
be
be used until it has been registered.
it
The benefit of registering an LPA shortly after it is made is that
of an it is is
it
it will be ready to be used by the Attorney(s) when needed.
be to be by
If an
If an application to register is made a long time before the LPA
to is
is
is needed then the LPA may need to be looked at again from
to be at
time to time to make sure that the contents are still relevant to
to to to
the Donor’s circumstances.
If
If circumstances change, and aspects of the LPA need to be
of to be
changed to reflect this, a new LPA will need to be made.
to to be
Changes cannot be made to any part of a signed and certified
be to of
LPA.
38
38
39. Who can apply to register?
T h e D o n o r o r A t t o r n e y( s )
c an ap p l y t o r e g i st e r an
LPA.
39
39
40. Applications by attorneys
Attorneys appointed together must apply
for registration together.
Where appointed jointly and severally (i.e.,
together and independently), any of them
may make the application. There is no
legal requirement to advise the other
Attorney(s) of the application. The OPG
will do this. Likewise, the the OPG will
formally notify the Donor of any
application it receives to register an LPA.
The named persons listed in the LPA must
be notified of the intention to register the
LPA, using Form LPA1. Once a decision
has been taken to make an application to
register, this should be the first thing that
i s d o ne .
40
40
41. Applications by donors
The donor can register the LPA while
they are still capable.
There is no legal requirement to give
notice to the Attorney(s). The OPG will
do this.
The donor must notify the named
persons listed in the LPA, using form
LPA1. Once a decision has been taken to
make an application to register, this
should be the first thing that is done.
41
41
42. Applying to register an LPA
After the last notice of intention to
register has been served, the person
registering the LPA (whether an
attorney(s) or the donor) sends to the
OPG the original LPA form, a completed
application form (LPA2) and the
appropriate fee.
A separate registration fee is applicable
for each separate LPA registered.
These completed forms should be sent to:
Office of the Public Guardian
Archway Tower
2 J un c t io n R o a d
L o nd o n
N 1 9 5 SZ
42
42
43. Fees
Personal Welfare LPA registration fee £150
Property and Affairs LPA registration fee £150
Application to search LPA register £ 25
Court of Protection application fee £400
Court of Protection hearing fee £500
43
43
44. Fee exemptions & remissions
Fee exemption
Where the person receives any of the following means-
tested benefits: Income Support; Income-based Job-
Seeker’s Allowance; State Pension Guarantee Credit; A
combination of Working Tax Credit and either Child
Tax Credit, Disability Element or Severe Disability
Element; Housing Benefit; or Council Tax Benefit.
To apply for a fee exemption or remission, the person
s h o u ld c o mp le t e t h e fo r m s h o w n .
Fee remission
See Table 1 (left). Gross annual income includes non-
means-tested benefits and pensions.
Persons ineligible for exemption or remission
They may apply for the fee to be waived by writing a
letter explaining their situation and including it with
your application to the Court or the OPG.
Postponement of fee
Include a letter with the application, explaining the
reason. 44
44
45. Objections to registration
Only the Donor, the named persons or other Attorneys are able to object to the
registration of an LPA.
ON FACTUAL GROUNDS ON PRESCRIBED GROUNDS
— The Donor is bankrupt or interim bankrupt — The power purported to be created by
(Property and Affairs LPAs); the instrument is not valid as an LPA, e.g.
the person objecting does not believe the
— The Attorney is bankrupt or interim
Donor had capacity to make an LPA;
bankrupt (Property and Affairs LPAs)
— The power created by the instrument no
— The Donor or the attorney is dead
longer exists, e.g. the Donor revoked it at a
— There has been dissolution or annulment of time when s/he had capacity to do so;
a marriage or civil partnership between Donor
— Fraud or undue pressure was used to
and Attorney
induce the Donor to make the power;
—The Attorney(s) lack the capacity to be an
— The Attorney proposes to behave in a
Attorney under the LPA;
way that would contravene their authority
—The Attorney(s) have disclaimed their or would not be in the Donor’s best
appointment. interests.
45
45
46. Timescales
If there are no problems, the OPG will
set a registration date and let the
applicant(s) know when it is.
This will be six weeks from the date
that the OPG gives notice to any
persons who did not join in the
application to register.
If there are any objections, it may not
be possible to register the LPA after six
weeks until these have been resolved.
46
46
47. Urgent situations
An unregistered LPA cannot be used to make decisions on the Donor’s behalf, or gain
access to the Donor’s money or assets. Therefore, a timely application to register is
important.
If an urgent decision needs to be made on the Donor’s behalf but the LPA has not yet
been registered, a person can apply to the Court of Protection for an order to make that
decision on the Donor’s behalf.
It is therefore advisable for both Donor and Attorney(s) to work together to plan ahead
and not leave registration to the last minute. Remember, an LPA can be registered any
time after it is created.
47
47
48. Court applications
In general, you do not need permission to
apply to the Court if the application relates
t o p r o p e r t y a n d a f f a i rs .
In general, you do need permission if the
application relates to personal welfare.
The Court will aims to deal with application
for permission to apply within 14 days of
receiving them.
The Court will consider the applicant’s
connection to the person, their reasons for
the application, and the benefits and
alternatives when deciding whether to
grant permission.
U s ua lly t h e C o ur t w i l l b e a b l e t o d e c id e a
permission application without a hearing.
48
48
49. Court application timescales
The Court will contact the applicant within 25
working days of receipt of the formal
application.
Where no oral hearing is directed, the Court
will give a direction within 21 weeks of receipt
of the application.
Where an oral hearing is directed by the
Court, it will set the hearing within 15 weeks
of the direction.
49
49
52. Liability for care or treatment
THE SECTION 5 PRINCIPLE
Where the section 5 conditions are satisfied, a person who
does an act “in connection” with an incapacitated person’s
an an
care or treatment is regarded as having the incapacitated
or is as
person’s consent for the act.
The person doing the act will only incur a legal liability if
if
her/his act would have been unlawful if done with consent.
if
Negligent acts are not protected.
Section 5
52
52
53. The 5 Section 5 Conditions
1 The act is one undertaken ‘in connection with’ another’ person’s care or
treatment;
2 The person doing it takes reasonable steps to establish whether the recipient
has capacity;
3 S/he reasonably believes that the recipient lacks capacity;
4 S/he reasonably believes that it is in their best interests for act to be done;
5 If s/he uses restraint, s/he reasonably believes BOTH that it is necessary to do
the act in order to prevent harm to the person and that the act is a
proportionate response to the likelihood of their suffering harm and the
seriousness of that harm.
DEFINITION OF RESTRAINT
For these purposes, a person restrains another person if he (a) uses, or threatens to use, force to secure the
doing of an act which s/he resists, or (b) restricts their liberty of movement, whether or not they resist53
.
53
54. Detention and section 5
Deprivation of liberty
The person doing the act does Restriction √
more than merely restrain the of liberty
other person if s/he deprives that
person of his liberty within the
meaning of Article 5(1) of the
Human Rights Convention, Deprivation X
whether or not D is a public
of liberty
authority.
Section 6
54
54
55. Whether deprived of liberty?
‘The Court considers the key factor ‘The concrete situation was that the
in the present case to be that the applicant was under continuous
health care professionals treating supervision and control and was
and managing the applicant not free to leave. Any suggestion to
the contrary was, in the Court's
exercised complete and effective
view, fairly described by Lord Steyn
control over his care and movements as “stretching credulity to breaking
from the moment he presented acute point” and as a “fairy tale”.’
behavioural problems on 22 July
1997 to the date he was
compulsorily detained on 29
October 1997.’
Bournewood Case (ECHR)
55
55
56. The Sessay Case
R v South London & Maudsley NHS Foundation Trust and
The Commissioner of Police for the Metropolis, on applic of
Sessay [2011] EWHC 2617 (QB), Divisional Court, Pitchford
LJ and Supperstone J, 13 October 2011
56
56
57. Sessay
On 7 August 2010, two police officers entered the private accommodation
of Ms Sawida Sessay following a complaint from a neighbour that she had
not been caring properly for her child. The officers formed the view that Ms
Sessay was mentally disordered and were concerned for her welfare and
that of her child. The officers reasonably formed the view that it was in her
best interests that she be taken to hospital for the purposes of being
assessed and helped in relation to her mental health. They drove her and
her child to Peckham police station, where the child was taken into police
protection. Then they drove Ms Sessay to the Maudsley Hospital.
The officers considered that Ms Sessay fell within the scope of section 135
of the Mental Health Act 1983 but they did not have a warrant and were
not accompanied by an approved mental health professional or doctor.
Instead, the officers relied upon section 5 of the Mental Capacity Act 2005
to justify taking her to hospital. On arrival at the hospital, the officers took
her to the section 136 Suite.
57
57
58. Sessay
Actions of the police
Ms Sessay brought proceedings against the police who
agreed that the following declaration be made:
“1. Sections 135 and 136 of the Mental Health Act 1983
are the exclusive powers available to police officers to
remove persons who appear to be mentally disordered
to a place of safety. Sections 5 and 6 of the Mental
Capacity Act 2005 do not confer on police officers
authority to remove persons to hospital or other places
of safety for the purposes set out in sections 135 and
136 of the Mental Health Act 1983.
2. The Claimant’s removal to hospital by [police] officers
on 7th August 2010 was unlawful and breaches her
rights under Article 5 and Article 8 ECHR.”
58
58
59. Sessay
Detention in hospital prior to section 2
Ms Sessay arrived at the hospital at 09.20 on 7 August 2010.
The application to admit her under section 2 was not received
by the Hospital Managers until 13 hours later.
Ms Sessay claimed that:
She was deprived of her liberty during the 13-hour
period prior to the decision to admit her under s.2;
There is no power to deprive patients of their liberty in
psychiatric hospitals under the common law doctrine of
necessity;
During this 13-hour period there was no lawful authority
for the deprivation of liberty. Consequently, her
59
59
treatment constituted false imprisonment at common
law and/or was in breach of Article 5 ECHR.
60. Sessay
HELD
1. Part II of the Mental Health Act 1983 provides a comprehensive code for
compulsory admission to hospital for non-compliant incapacitated patients
such as the Claimant.
2. The common law principle of necessity does not apply in this context.
3. It is unlikely in the ordinary case that there will be a false imprisonment at
common law or deprivation of liberty for the purposes of Article 5(1) ECHR
if there is no undue delay during the processing of an application under
sections 2 or 4.
4. If a section 4 application could not be completed without undue delay then
the trust’s staff might need to contact the police for them to consider using
their powers of detention under s.136 MHA.
5. The Claimant’s detention at the hospital on 7 August 2010 was unlawful
and in breach of her rights under Article 5 ECHR. The Claimant was
entitled to a declaration to this effect, together with damages for breach of
Article 5 and for false imprisonment to be assessed, if not agreed.
60
60
61. Scenarios
A naso-gastric tube is inserted in order to
treat an informal patient who suffers from
anorexia nervosa.
Is this act protected under the Mental
Capacity Act?
61
61
62. Scenarios
Ms Fox has a profound learning disability and
epilepsy. She is being cared for in a residential
care home. Sometimes restraint is necessary to
get her to take medication. Is this lawful?
Ms Fox returns home at weekends. Can her
parents use restraint where this is necessary in
order to get her to take her medication?
62
62
63. Scenarios
The local mental health Crisis Resolution Team
is visiting Ms Thomas at her home. She has
been referred to the team as an alternative to
formal admission to hospital. She says that she
does not want to take medication. A syrup is
given to her by a member of the team who
says restraint can be used under the Mental
Capacity Act if she resists.
63
63
64. Scenarios
Sam Masters is a 42-year old man with a profound learning disability who
also has a diagnosis of schizophrenia. He has lived in residential care
throughout his adult life. He lacks capacity to consent to medication for his
mental illness and sometimes resists its administration.
He is subject to guardianship under the Mental Health Act 1983. This
enables his guardian (the local authority) to require him to reside at the
residential home, and provides authority to return him there if he absents
himself.
The social worker responsible for the guardianship telephones the staff at
the home and tells them that they now have statutory authority to
administer the medication, using reasonable force when necessary. ‘It’s a
community treatment order through the back door,’ she adds, so there will
be no need to use section 3 in future.
64
64
68. Legal Aid
Only where:
(i) the proceedings are of overwhelming
importance to the person whose health or welfare
is the subject of the proceedings
AND
(ii) the Court has ordered or is likely to order an
oral hearing at which it will be necessary for the
applicant for funding to be legally represented.
68
68
69. McKenzie Friends
MAY DO MAY NOT DO
provide moral support for act as the litigants’ agent
litigants; in relation to the
take notes; proceedings;
help with case papers; manage litigants’ cases
quietly give advice on any outside court, for
aspect of the conduct of example by signing court
the case. documents;
address the court, make
oral submissions or
examine witnesses.
69
69
71. Re F — Jurisdiction
The issue in Re F was whether the Court of Protection has any jurisdiction to
in Re of to
hear an application about a person unless and until the presumption of
an of
capacity is first rebutted. What is the position where the medical evidence
is is
concerning the person’s capacity is equivocal?
is
Held
Section 48 of the Mental Capacity Act 2005 enables the court to make “Interim
48 of to
orders and directions” provided, firstly, that ‘there is reason to believe that
is to
[the person] lacks capacity in relation to the matter.’
in to
This is plainly a lower threshold than “proof on balance of probability that [the
is on of
person] lacks capacity”. What is required is simply sufficient evidence to justify
is is to
a reasonable belief that [the person] may lack capacity in the relevant regard.
in
There are various phrases which might be used to describe what is required,
be to is
such as “good” or “serious cause for concern” or “a real possibility” that [the
as or or “a
person] lacks capacity, but the concept behind each of them is the same, and
of is
is
is really quite easily recognised. 71
71
72. Re F (2)
The jurisdiction under section 48 has two stages. It is the second stage which
48 It is
provides the real protection for a person against undue interference with their
affairs and their right to make their own decisions. The first stage is whether
to is
there is evidence giving good cause for concern that [the person] may lack
is
capacity in some relevant regard. Once that is raised as a serious possibility,
in is as
the second stage requires the court to consider whether ‘it is in [the person’s]
to is in
best interests to make the order or give the directions, without delay.’
to or
In
In this particular case, the unclear situation suggested a serious possibility
that F might lack capacity to make decisions about her own care needs,
to
whether temporarily or on a more long term basis. That possibility was
or on
sufficiently serious, or real, that the court was entitled to take jurisdiction
or to
under section 48. Appeal allowed.
48
72
72
73. Power to make declarations
The court may make declarations as to:
whether a person has or lacks capacity to
or to
make a decision specified in the declaration;
in
whether a person has or lacks capacity to
or to
make decisions on such matters as are
on as DECLARATIONS
described in the declaration;
in As to
Capacity
the lawfulness or otherwise of any act done, or
or of or Lawfulness
yet to be done, in relation to that person.
to be in to
The term “Act” includes an omission and a
an
course of conduct.
of
Section735
71
3
74. The Court’s Section 16 Powers
A matter concerning the
person’s personal welfare or
their property and affairs Decisions about where to live
The person lacks capacity in
relation to it
Decisions about contact
The court may by order decide
the matter or appoint a
deputy to make decisions
Decisions about medical treatment
74
74
75. Powers: Personal Welfare
Subject to section 20 (restrictions on deputies),
the powers under section 16 as respects P’s
personal welfare extend in particular to:
deciding where P is to live; Decisions about where to live
deciding what contact, if any, P is to have with
any specified persons;
making an order prohibiting a named person
from having contact with P;
Decisions about contact
giving or refusing consent to the carrying out or
continuation of a treatment by a person
providing health care for P;
giving a direction that a person responsible for
P's health care allow a different person to take
Decisions about medical treatment
over that responsibility.
Section5 7
71
75
76. Permission for PW applications
When deciding whether to grant permission to apply,
to to
section 50 of the Mental Capacity Act 2005 requires the
50 of
court to consider:
to
the applicant’s connection with the person
concerned;
the reasons for the asking the court to appoint a
to
deputy to make personal welfare decisions for the
to
person concerned;
in
in what ways the person concerned will benefit from
having a deputy appointed to make personal
to
welfare decisions for them.
whether those benefits can be achieved in any other
be in
way.
76
76
77. The threshold for permission
Permission ought to be granted if:
to be if
The application is not frivolous, vexatious, an abuse of process or an
is an of or an
otherwise illegitimate interference with the interests and rights of the person
of
concerned; and
having regard to these considerations, on the materials available to the court,
to on to
the application deserves fuller investigation by the court. In other words, it is
by In it is
possible that the order sought may be in the best interests of the person
be in of
concerned.
It is
It is not appropriate at the permission stage to determine whether the
at to
person’s best interests will best be served by the appointment of the
be by of
applicant as their personal welfare deputy, by a decision of the Court in
as by of in
relation to their personal welfare, or by making no decision at all and relying
to or by no at
on
on carers to provide appropriate care and treatment without consent under
to
section 5 of the Mental Capacity Act 2005.
of 77
77
78. Rules and guidance
Section 50(3) of the Mental Capacity Act 2005;
Part 8 of the Court of Protection Rules 2007;
Practice Direction PD8A;
Paragraphs 8.11, 8.12 and 8.39 of the Mental
Capacity Act 2005 Code of Practice.
78
78
79. DH NHS Foundation Trust v PS [2010] EWHC 1217 (Fam), Sir
Nicholas Wall (President), CoP, 26 May 2010
The applicant NHS foundation trust sought declarations from the
court that P have necessary surgery.
P was aged 55. She suffered from a learning disability and lacked
capacity to litigate and to make decisions about her future medical
treatment.
She had been diagnosed with cancer of the uterus.
An MRI scan had not been possible, because of claustrophobia, and
both radiotherapy and chemotherapy were considered not to be
appropriate.
Her treating doctors were in no doubt that she needed to undergo a
hysterectomy and bi-lateral salpingo-oophorectomy (removal of the
fallopian tubes and ovaries), and that without surgical intervention
the tumour would spread and lead, ultimately, to her death.
79
79
80. DH Case, …
Because of PS’s incapacity and phobia of hospitals and
needles, she would not submit to the operation and the
trust sought permission of the court to perform the
surgery using force or sedation as necessary.
Attempts had been made to explain the need for
surgery to PS and she has agreed on a previous
occasion to undergo an operation. However, she then
failed (and on that occasion refused) to attend hospital
for treatment.
The clinical team reluctantly came to the conclusion that
special arrangements would be needed to ensure that
she had the operation and that she remained in hospital
for her post operative recovery.
80
80
81. DH Case, …
The court received evidence concerning the steps necessary
(1) to ensure that PS attended hospital for the operation; and
(2) did not leave it prematurely after the operation has taken
place.
The plan was for a consultant anaesthetist to travel with an
ambulance crew to PS’s home, and in the event of her refusal
to attend hospital for her to be given a dose of sedative
(Midazolam) mixed with a soft drink such as Ribena.
The only realistic risk envisaged would be if the patient
became over-sedated and developed breathing difficulties.
Hence the need to have a consultant anaesthetist on hand.
In “a worst case scenario”, the anaesthetist envisaged an
injection of a fast acting and very safe sedative (ketamine).
81
81
82. DH Case, …
In relation to the post-operative stage, it would be
necessary for PS to have a plastic cannula inserted in
order to administer intravenous fluids and analgesic
medication.
PS would also be given analgesic medication which
would have a sedative effect on her, thereby rendering
it unlikely that she would be able to abscond.
However, it might be necessary to use force as a last
resort to ensure that she returned to her hospital bed.
She would be closely monitored by nursing staff.
82
82
83. DH Case, …
Finally, the court received a detailed statement from a
learning disability community sister employed by the
local NHS Trust.
The nurse had spent a considerable amount of time
building up her relationship with PS and her family, and
she described previous attempts to persuade PS to go to
hospital.
She concluded that it would be necessary to have a
“back up plan” in case she was unable to persuade PS
to go to hospital for the operation. She emphasised that
she would make “every effort” to try to avoid the use of
a sedative.
83
83
84. DH Case, …
H EL D
The evidence clearly established that it was in P’s best interests to
undergo surgery in order to treat her endometrial cancer.
Because of her phobias, it might well have been necessary to
sedate her in order to convey her to hospital. In those
circumstances, it was necessary for the trust to authorise such
treatment as being in P's best interests and to use force, if
necessary, to sedate and convey her to hospital.
Following the operation, it would be necessary to detain P in
hospital during the period of post-operative recovery. If it was in
P's best interests to have the operation, it was plainly in her
interest to recover appropriately from it and, thus, it was not
necessary to invoke the DOLs provisions.
84
84
85. DH Case, …
“After mature consideration, the Official Solicitor, on PS’s behalf, came to
the view that it was not necessary to invoke the Deprivation of Liberty
Provisions under Schedule 1 of the Act. I agree with that analysis. If it is
in PS’s interests (as it plainly is) to have the operation, it is plainly in her
interests to recover appropriately from it. In this respect I found Dr RE’s
evidence compelling.
In conclusion I am entirely satisfied that it was right to make the
declarations sought by the Trust, and although the application is unusual
and may involve the use of force, I am nonetheless impressed by the
care and thought which have gone into ensuring that PS receives the
treatment which she plainly needs, and which it is plainly in her interests
to have.”
Postscript
The Official Solicitor has since clarified that the President decided in the
particular, time-limited circumstances of the case, that the deprivation of
P's liberty could be authorised by the Court, rather than by way of the
use of the NHS Trust of the DOLs provisions.
85
85
86. Scenario
Until 1 December, F lived with his mother (the Applicant) and their
family in the county of Eastshire. F has been estimated to have an IQ
of 46.
On 1 December, F left home to attend a day centre and did not return
home. It appears that, with the assistance of the county council (the
Second Respondent), he took up residence with a carer in a town in
Eastshire and has not had any contact with his mother since.
The Applicant submits that her son lacks capacity to (a) decide his
place of residence and, by implication, to decide to leave the family’s
home and to live elsewhere; (b) decide what contact to have with her
and other family members; (c) litigate; (d) to make decisions about
what information concerning his personal welfare should be shared
with his mother.
The Applicant further submits that it is in her son’s best interests to
live with her and their family at home.
The Second Respondent submits that F has capacity to decide where
he lives, with whom he has contact, and to decide that information
about him (including his whereabouts) should not be shared with
third parties, including family members. 86
86
87. Scenario
In 2007, B sustained severe head injuries as a result of a road traffic
accident. He has made a personal injury claim by his mother and
litigation friend and primary liability for the accident has been
conceded by the insurers of the driver of the other vehicle.
The applicant is a solicitor who has also applied to be appointed as his
deputy for property and affairs. Disputes have arisen as to B’s best
interests in terms of his rehabilitation, treatment and care, and place
of residence.
The applicant proposes that he should be required to receive a period
of “in-patient rehabilitation”. In particular, he could and should be
admitted for a period of 18 months to a distant private rehabilitation
unit at a cost of over £200,000. Interim payments are being applied for
to enable this.
NHS Eastshire and Eastshire Council believe that it would be in B’s best
interests to receive a period of assessment and/or treatment at the
local East Town Hospital, which is part of the NHS. It is understood
that B opposes, or is likely to oppose, any admission or prolonged
admission to a rehabilitation unit.
The applicant asks the court to make declarations or orders concerning
B’s best interests. 87
87
88. Powers: Property and Affairs
Subject to section 20 (restrictions on deputies), the powers under section
16 as respects P’s property and affairs extend in particular to: Managing property
the control and management of P’s property;
the sale, exchange, charging, gift or other disposition of P’s Selling property
property;
Settling Property
the acquisition of property in P’s name or on P’s behalf;
the carrying on, on P’s behalf, of any profession, trade or business; Trade, profession,
the taking of a decision which will have the effect of dissolving a business
partnership of which P is a member;
the carrying out of any contract entered into by P; Business partnership
the discharge of P's debts and of any of P's obligations, whether
Contracts
legally enforceable or not;
the settlement of any of P's property, whether for P's benefit or for Debts
the benefit of others;
the execution for P of a will (although no will may be made under Wills
this power at a time when P has not reached 18);
the exercise of any power (including a power to consent) vested in P Trust powers
whether beneficially or as trustee or otherwise;
the conduct of legal proceedings in P's name or on P's behalf.
Legal proceedings
Note that Schedule 2 supplements the provisions of section 18. Section8 8
81
88
90. Appointment of Deputies
SECTION 16
If a person lacks capacity in relation to a matter (or matters) concerning their personal
welfare or their property and affairs, the court may:
by making an order, make the decision or decisions on P’s behalf in relation to the matter
or matters, or
appoint a person (a “deputy”) to make decisions on P’s behalf in relation to the matter or
matters.
COURT DECISION PREFERRED TO APPOINTMENT OF DEPUTY
When deciding whether it is in P's best interests to appoint a deputy, the court must
have regard (in addition to the matters mentioned in section 4) to the principles that:
a decision by the court is to be preferred to the appointment of a deputy to make a
decision, and
the powers conferred on a deputy should be as limited in scope and duration as is
reasonably practicable in the circumstances.
Section0 6
91
90
91. Code of Practice Example
A young woman receives a significant award of
damages following an accident at work, which The court decides to
resulted in serious brain damage and other appoint the sister and a
disabilities. solicitor as joint and
Her parents have recently divorced and are several deputies to
arguing about how the money should be used decide where the young
and where their daughter should live. She has woman will live and
always been close to her sister, who is keen to be how to manage her
involved but is anxious about dealing with such property and affairs.
a large amount of money.
91
91
93. Re P [2010] EWHC 1592 (Fam), Family Division, Hedley J, 13 May 2010
The applicants were the parents and sister of the person concerned, an exceptionally
talented musician who lacked capacity to make decisions about his accommodation,
financial affairs and appearing at public events because of a learning disability. P was
also blind and needed one to one care. The applicants applied to be appointed as P’s
personal welfare and financial deputies. The RNIB, which provided his
accommodation, asked the court to consider if an independent deputy should be
appointed in addition to the applicants, and also where he should live.
HELD (Hedley J)
“8. Since the principle of appointing deputies is fundamental to this part of the Act, it
must be appreciated that Section 16(4) has to be read in the context of the fact that,
ordinarily, the court will appoint deputies where it feels confident that it can. It is
perhaps important to take one step further back even than that, and for the court to
remind itself that in a society structured as is ours, it is not the State, whether
through the agency of an authority or the court, which is primarily responsible for
individuals who are subjects or citizens of the State. It is for those who naturally have
their care and wellbeing at heart, that is to say, members of the family, where they
are willing and able to do so, to take first place in the care and upbringing, not only
of children, but of those whose needs, because of disability, extend far into
adulthood. It seems to me at least that the Act ought to be read subject to that
overriding policy aim.
93
93
94. Re P [2010] EWHC 1592 (Fam), Family Division, Hedley J, 13 May 2010
….
9. Therefore, the court ought to start from the position that, where family
members offer themselves as deputies, then, in the absence of family
dispute or other evidence that raises queries as to their willingness or
capacity to carry out those functions, the court ought to approach such an
application with considerable openness and sympathy. Therefore, it is
probably helpful to consider what it is that has resulted in the decision of the
court being sought.”
94
94
95. G v E (also known as Re E) [2010] EWHC 2512 (Fam) CoP, 11
October 2010, Baker J
The applicants (G and F) were the sister and carer of the person
concerned, a 20-year-old man who lacked capacity. They applied for an
order that they be appointed deputies for his personal welfare and an
order that G and a professional be appointed deputy for his property and
affairs.
G also applied for an order that she should be appointed in lieu of the
Official Solicitor to act as E's litigation friend in all future legal
proceedings.
The court had earlier held that the second respondent local authority had
acted unlawfully in removing E, who suffered from severe disabilities, from
F's care.
G and F argued that the absence in the 2005 Act of a general authority to
act and take decisions was justification for the appointment of deputies in
cases such as this, and that the appointment of members of the family
was in accordance with the right to respect for family life under Article 8.
95
95
96. HELD
It would not be appropriate to appoint G and F as deputies. The vast majority of
decisions about incapacitated adults were taken by carers and others without any
formal general authority. In passing the 2005 Act, Parliament ultimately rejected
the Law Commission's proposal of a statutory general authority and opted for the
same approach as under the previous law by creating in section 5 as a statutory
defence to protect all persons who carried out acts in connection with the care or
treatment of an incapacitated adult, provided they reasonably believed that it
would be in that person's best interests for the act to be done.
It was emphatically not part of the scheme underpinning the Act that there should
be one individual who as a matter of course was given a special legal status to
make decisions about incapacitated persons. Where there was disagreement about
the appropriate care and treatment or the issue was a matter of particular gravity
or difficulty, the Act and Code provided that the issue should usually be
determined by the court.
It would be a misreading of the structure and policy of the Act, and a
misunderstanding of the concept and role of deputies, to think it necessary to
appoint family members to that position in order to enable them better to fulfil
their role as carers.
96
96
97. Application forms
Property and affairs applications
Application Details of Assessment of Deputy’s Fee
Form property & affairs capacity Declaration of
(COP1) (COP1A) (COP3) (COP4) £400
Personal welfare applications — Add:
Permission Supporting
Form Information
(COP 2) (COP 1B)
97
97
98. Interim orders (property)
Investigate and report orders
Freezing orders
Access to specified account to
to to
pay outstanding care home or or
other fees
Interim deputy order
Suspension of EPA or LPA
of or
98
98
99. Standard Property Order — 1
1.
1. Kevin Taylor of [address] is appointed as deputy (“the deputy”) to
of is as to
make decisions on behalf of Peter Taylor that he is unable to make
on of he is to
for himself in relation to his property and affairs subject to any
in to to
conditions or restrictions set out in this order.
or in
2.
2. The appointment will last until date/further order.
3.
3. The deputy must apply the principles set out in section 1 of the
in of
Mental Capacity Act 2005 and have regard to the guidance in the
to in
Code of Practice to the Act.
of to
4.
4. The court confers general authority on the deputy to take
on to
possession or control of the property and affairs of Peter Taylor and
or of of
to
to exercise the same powers of management and investment as he
of as he
has as beneficial owner, subject to the terms and conditions set out
as to
in
in this order.
99
99
100. Standard Property Order — 2
5.
5. The deputy may make provision for the needs of anyone who is
of is
related to or connected with Peter Taylor, if he provided for or might
to o r if he or
be
be expected to provide for that person’s needs, by doing whatever
to by
he
he did or might reasonably be expected to do to meet those needs.
or be to do to
6.
6. The deputy may (without obtaining any further authority from the
court) dispose of money and property of Peter Taylor by way of gift
of of by of
to
to any charity to which he made or might have been expected to
to he or to
make gifts and on customary occasions to persons who are related
on to
to o r
to or connected with him, provided that the value of each such gift is
of is
not unreasonable having regard to all the circumstances and, in
to in
particular, the size of his estate.
of
7.
7. Reports …
8.
8. Security
100
101. Additional property clauses
1 Investment clauses
2 Withdrawal of money clause
3 Sale of home
4 Proceeds of sale (interim orders)
5 Personal effects
6 Pets
7 Purchase of land
8 Section 117
9 NHS continuing health care funding
101
102. Investment Clauses
a)
a) The deputy is required, within six months of the date of
is of of
this order, to obtain and have regard to advice in writing
to to in
from an investment adviser regulated by the Financial
an by
Services Authority in relation to the investment of John
in to of
Smith’s funds.
b)
b) Provided that the written investment advice received
under the preceding paragraph is first copied to the
is to
Office of the Public Guardian and the Court Funds Office,
of
the deputy is authorised to withdraw such sum or sums
is to or
from any funds of John Smith held in the Court Funds
of in
Office as is necessary to give effect to the written
as is to to
investment advice provided that any sums so withdrawn
so
are invested forthwith in accordance with the written
in
investment advice.
c)
c) Any investments made under the preceding paragraph
may be varied subsequently by the deputy, and other
be by
investments made by the deputy, provided that any such
by
decisions are made in accordance with the procedure set
in
out in the preceding paragraph.
in 102
103. Withdrawal of money limits
The deputy may withdraw a sum not
exceeding £x a year from the Court Funds
Office/funds of Alan Smith without
needing to obtain the prior approval of the
Court of Protection.
103
104. Sale of home — medical evidence
The deputy is not authorised to
is to
exchange contracts for the sale of of
the property unless she has first
received a written medical opinion
from a registered medical practitioner
who has treated the person during
the previous month stating that in in
their opinion the person is likely to
is to
require hospital or residential care for
or
the remainder of their natural life.
of
104
105. Sale of home — proceeds of sale
a)
a) Until a deputy for property and
affairs has been appointed for the
person, the applicant must ensure
that the proceeds of sale of the
of of
property are paid to a solicitor with
to
a current practising certificate and
kept by the solicitor to the court’s
by to
order in an interest-bearing client
in an
deposit account. Once a deputy has
been appointed and has taken out
the required security, the solicitor
may transfer the net proceeds of of
sale to the deputy appointed by the
to by
court. 105
106. Sale of home — personal effects
a)
a) The deputy is not authorised to dispose
of any personal effects which may have
a sentimental value to Joan Smith or her
family or descendants, such as
photographs, personal letters,
mementoes, family records, heirlooms
and the like; and so far as practicable
the deputy is to ensure that she has with
her such of the same that are likely to
give her pleasure or comfort and that the
remainder are safely stored.
106
107. Pets
a)
a) The deputy is required and authorised
is
to
to make arrangements to ensure that
to
John Smith’s cat Toby receives the
same quality of care that it received
of it
while in his personal care and Toby is
in is
not to be destroyed unless a veterinary
to be
surgeon advises that this is necessary
is
on
on clinical grounds in order to spare
in to
the pet significant suffering.
b)
b) The deputy is authorised to pay for the
is to
pet’s maintenance, care and veterinary
fees from the funds of John Smith.
of
107
108. Purchase of land
a)
a) Subject to the following paragraphs, the deputy is authorised in the name and
to is in
on
on behalf of Manjit Singh to purchase such property upon such terms as to
of to a s to
price or otherwise as appear reasonable and appropriate to the deputy and
or as to
upon good title being shown to the said property to procure a conveyance
to to
transfer or assignment of the said property to her and for this purpose the
or of to
deputy may withdraw a sum not exceeding £375,000 from the funds of Manjit
of
Singh without needing to obtain the prior approval of the Court of Protection.
to of of
b)
b) The deputy must ensure that any property purchased in the name and on
in on
behalf of Manjit Singh is subject to a deed of trust and that one of the trustees
of is to of of
is
is the deputy or a solicitor with a current practising certificate.
or
c)
c) The deputy must further ensure that the trustees forthwith apply for the
registration of themselves as the registered owners and at the same time
of as at
apply to the Chief Land Registrar to procure a restriction in the Proprietorship
to to in
Register of the title to the property in the following terms: ‘No disposition of
of to in of
the Registered Estate made during the lifetime of Manjit Singh is to be
of is to be
completed by registration without the written consent of the Court of
by of of
Protection.
108
109. Section 117
Until further court order, the
deputy is not authorised to
is to
117
use the money or property of
or of
Alison Drake to pay for
to
accommodation or after-care
or
services which she is entitled
is
to
to receive free of charge
of
under section 117 of theof
Mental Health Act 1983.
109
110. NHS Continuing Health Care
a)
a) Subject to the following paragraph,
to
the deputy is authorised to instruct a
is to
solicitor to advise and assist her in
to in
establishing and/or challenging John
Smith’s entitlement to free NHS
to
continuing health care and s/he is is
authorised to pay for the same from
to
the funds of John Smith.
of
b)
b) The deputy shall not issue any court
proceedings without a further court
order.
110
112. Interim orders (property)
Investigate and report orders
Freezing orders
Access to specified account to
to to
pay outstanding care home or or
other fees
Interim deputy order
Suspension of EPA or LPA
of or
Penal notices
112
113. Scenario
Tony is aged 31. He was born with Down’s Syndrome. He is
an only child and has always lived with his mother. His father
left the family home shortly after he was born and has had no
contact for many years.
Over the years his mother has saved around £15,000 for him,
which is in a savings account. She became his deputy 7 years
ago.
Blankshire Social Services began adult safeguarding procedures
last year when his mother failed to pay the required weekly
contributions for social care being provided. His mother has not
filed annual accounts with the Public Guardian for two years
and has not paid the security premium during that time. She
has not answered letters from the Public Guardian for six
months. 113
114. Scenario
John is aged 21. When he was 12 he received £600,000
compensation following a road accident. His mother was
appointed as his deputy for property and affairs.
John suffered some brain injury in the accident. He is
impulsive. He has several convictions for drug-related
offences (heroin, cannabis, cocaine). He is currently on
remand but lives at home when not in custody.
The court order authorises his mother to withdraw £50,000
per annum. No accounts have been filed for three years. The
security premium has not been paid this year. His mother
says that some of the money has gone on home improvements
and a holiday for the family, and family living expenses.
There is just over £3,000 in the deputy bank account.
114
115. Scenario
On 1 April 2007, P appointed X and Y to be her joint and several
donees for the purposes of the Mental Capacity Act 2005.
The instrument was registered by the Public Guardian on 1 July
2009.
The Public Guardian has applied to the court for orders under
the Mental Capacity Act 2005 in relation to P’s property and
a f f a irs .
The court has been informed that the police believe that large
sums of money cannot properly be accounted for, including
£70,000 paid to X in 2008, £185,000 transferred to Z in Canada
by X in 2010, £50,000 used to purchase silver in the name of one
of X’s sons and £100,000 used to convert a coach house.
115
117. Jurisdiction
The Court of
Protection may
authorise a statutory
will (or codicil) to be
executed for a
person who lacks
testamentary
capacity.
117
118. Testamentary capacity
‘A
‘A patient is capable of making a valid will if s/he
is of if
understands:
the nature of the act and its effects,
of
the extent of the property of which s/he is
of of is
disposing,
and can comprehend and appreciate the
claims to which s/he ought to give effect.’
to to
Banks v Goodfellow (1870)
118
119. Reasons for applying
1.
1. Inheritance tax reasons
2.
2. Benefits reasons
3.
3. To ensure that P’s estate is distributed
according to her/his known wishes
4.
4. Because relying on a distribution
according to the intestacy rules would not
be appropriate
119
120. Intestacy Rules — Married persons
WITH CHILDREN NO CHILDREN
Spouse gets everything up to If there are parents, brothers or
£250,000 & personal possessions. sisters of the whole blood, nephew
or nieces:-
Anything remaining is divided into
two:- Spouse gets everything up to
£450,000 & personal
Half to the children at 18 or possessions.
earlier marriage.
Anything remaining is divided into
Half in trust during spouse's two:-
lifetime — he or she gets the Half of this goes to spouse
income. On spouse’s death this
half goes to the children. Half to parents. If no parent is
living then it goes to brothers or
If a child predeceases, leaving issue, sisters or their children.
her/his issue will take her/his share
between them. 120
121. Intestacy Rules — Unmarried
WITH CHILDREN NO CHILDREN
Estate goes to children at 18 Estate goes to parents.
or earlier marriage. If none, then to siblings of the whole blood
or their issue.
If a child predeceases, leaving
If none, then to siblings of the half blood or
issue, his issue take per
their issue.
stirpes.
If none, then to grandparents.
If none, then to uncles and aunts of the
whole blood or their issue.
If none, then to uncles and aunts of the half
blood or their issue.
Lastly, estate goes to the Crown (or to the
Duchy of Lancaster or the Duke of
Cornwall).
121
122. The parties
The applicant must name as a respondent:
as
1.
1. any beneficiary under an existing will or codicil who is
an or is
likely to be materially or adversely affected by the
to be or by
application;
2.
2. any beneficiary under a proposed will or codicil who is
or is
likely to be materially or adversely affected by the
to be or by
application; and
3.
3. any prospective beneficiary under P’s intestacy where P
has no existing will.
no
The court will generally add P as a party and invite the OS to
as O S to
act as her/his litigation friend.
as
122
123. Procedure: PD9F
The applicant must file and serve the following information
and documents in the form of a COP24 statement with
in of 24
exhibits (as appropriate):
1.
1. where the application is for the execution of a statutory
is of
will or codicil, a copy of the draft will or codicil, plus one
or of or
copy;
2.
2. a copy of any existing will or codicil;
of or
3.
3. any consents to act by proposed executors;
to by
4.
4. details of P's family in the form of a family tree,
of in of
including the full name and date of birth of each person
of of
included in the family tree;
in
123
124. Procedure: PD9F
5.
5. a schedule showing details of P's current assets, with
of
u p to
up to date valuations;
6.
6. a schedule showing the estimated net yearly income
and spending of P;
of
7.
7. a statement showing P’s needs, both current and
future estimates, and her/his general circumstances;
8. if
8. if P is living in NHS accommodation, information on
is in on
whether s/he may be discharged to local authority
be to
accommodation, to other fee-paying accommodation or
to or
to
to her/his own home;
124
