Here to help with questions relating to learning disability and its impact on family carers
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:
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
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:
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:
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.