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The Society for Children
and Adults with Learning
Disabilities and their Families

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Mental Capacity Act 2005

Rescare was closely involved in the consultations during the drafting of legislation that eventually became the Mental Capacity Act 2005, often referred to as the MCA.

A summary of the contents of the Act may be found here on the DirectGov website:- http://www.direct.gov.uk/en/governmentcitizensandrights/mentalcapacityandthelaw/makingdecisionsforsomeoneelse/dg_186479 .

The Mental Capacity Act provides a framework to empower and protect people who may lack capacity to make some decisions for themselves.

The Mental Capacity Act makes clear who can take decisions in which situations, and how they should go about this.

Anyone who works with or cares for an adult who lacks capacity must comply with the MCA when making decisions or acting for that person.

This applies whether decisions are life changing events or more every day matters and is relevant to adults of any age, regardless of when they lost capacity.

The underlying philosophy of the MCA is to ensure that those who lack capacity are empowered to make as many decisions for themselves as possible and that any decision made, or action taken, on their behalf is made in their best interests.

The five key principles in the Act are:

  1. Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
  2. A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
  3. Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
  4. Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
  5. Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.

The Act’s Code of Practice is available here: http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/@disabled/documents/digitalasset/dg_186484.pdf

The Act covers a wide range of circumstances and contingencies. When the Act was first published there was considerable emphasis in the media on persons with capacity but facing the future loss of capacity, and the Court of Protection was consequently overwhelmed with a tide of applications for Powers of Attorney. But Rescare’s primary concern was, and is, with those people who already lack capacity, from birth or through other causes, and with their family carers. Rescare supported the introduction of the role of Deputy (which replaced the previous position of Receiver). The Deputy was to be a ‘substitute decision maker’, appointed by the Court of Protection, to make decisions on behalf of person without capacity with regard to ‘Property and Financial Affairs’ and/or Personal Affairs (i.e. health and welfare).

From the experiences of Rescare’s own members making applications to the Court of Protection, and from the direct involvement of Rescare’s office team in supporting such applications, Rescare regrets to report that the process of applying to be a deputy is

  • Expensive,
    • Applicants pay an application fee to the Court (Even if this is refundable due to the circumstances of the applicant or the person lacking capacity, the fee must be paid and an application for Remission of Fees made subsequently)
    • Successful applicants for Deputyship then pay an annual Supervision Fee (at one of three levels) to the Court
    • Applicants seeking legal advice or support, typically from a solicitor, will face considerable legal fees
  • Complicated,
    • Applicants for Deputyship will be required to submit the appropriate set of documents to the Court. They will be required to retain copies of the such documents, and to distribute copies of documents to interested parties as required, typically other relatives of the person for whom deputyship is being sought, and agencies involved in his/her care.
    • One applicant known to Rescare was advised that she needed to present a ‘cogent and relevant’ argument in favour of her application for deputyship: the completion of the ‘free format text’ sections of the application forms can be a daunting prospect.
  • Time-consuming.
    • Since the introduction of The Mental Capacity Act, the Court of Protection has suffered from delays and backlogs.
    • The application process itself has delays built in to it. There is for example a six-week waiting period, in which persons notified of an application to the Court are allowed to express a formal interest in the proceedings

How to make an application to the Court of Protection (e.g. for Deputyship):

An overview of the application process has now appeared on the DirectGov website:

http://www.direct.gov.uk/en/Governmentcitizensandrights/Mentalcapacityandthelaw/Makingdecisionsforsomeoneelse/DG_176235

Parents and family carers of persons with a learning disability will find this booklet more specific and useful: “Making decisions A guide for family, friends and other unpaid carers”, available at http://www.justice.gov.uk/downloads/protecting-the-vulnerable/mca/opg-602-0409.pdf

Application forms and guidance documents are now only available from the website Her Majesty’s Courts and Tribunals Service (HMCTS), an agency of the Ministry of Justice.

The best way to the Court of Protection (COP) documents, amongst a mass of documentation relating to other courts and services, is to use the HMCTS FormFinder utility:

  • Deputyship applications are Court of Protection documents, so set the ‘Available Types’ to ‘Court of Protection’ and click on Search:

The range of relevant documents may seem daunting. The best next step is to download the two documents within the category leaflets, COP42 and COP44.

COP42 is a Guide to Making Applications to the Court of Protection. This is the procedural guide on how to apply for between Deputyship for Property and Affairs and/or Personal Welfare, and should be read first by anyone considering an application.

COP44 describes the latest regulations regarding Fees, Exemptions and Remissions. This will indicate the cost of an application. Note that even when an exemption or remission applies, it will usually be necessary to pay any fees and then claim them back.

To proceed with an application, the next step is to download the appropriate ‘pack’ of forms.

The application forms are downloadable PDF files and may completed on a computer or laptop, or can printed off and completed by hand.

Note: it is usually an easier and less complicated process to apply for Deputyship for Property and Affairs. Rescare is aware of members who have (successfully) applied for Deputyship for Property and Affairs, before applying for Deputyship for Personal Welfare.

For assistance regarding applications to the Court of Protection, call its Contact Enquiry Service on 0300 456 4600.

RESCARE

The Society for Children and Adults
with Learning Disabilities and their Families

 

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